Stovall v. Lampton Co.

• Decision Date: 18 November 1935
• Docket Number: 31928
• Citation: 164 So. 39,174 Miss. 58
• Court: Mississippi Supreme Court
• Parties: STOVALL v. LAMPTON CO

164 So. 39

174 Miss. 58

STOVALL v. LAMPTON CO

No. 31928

Supreme Court of Mississippi

November 18, 1935

Division A

1. ACCORD AND SATISFACTION.

Until satisfaction, accord is revocable at pleasure of either party, and until satisfaction original obligation remains in force and creditor may enforce it.

2. ACCORD AND SATISFACTION.

That creditor's employee, who took possession of debtor's livestock, was also trustee in deed of trust executed by debtor to creditor as security for open account, was not notice to debtor of revocation or intention to revoke accord agreed to between debtor and creditor, as respects contention by creditor that its taking possession of the stock through its trustee and proceeding to foreclose the deed of trust was conclusive evidence of a revocation of the accord, justifying peremptory instruction requested by it.

3. ACCORD AND SATISFACTION.

Where creditor's employee took possession of debtor's livestock, to consummate an accord of indebtedness owing by debtor to creditor, it was not necessary for debtor to notify employee that livestock was being surrendered only on condition that it be accepted in full satisfaction of debt.

4. ACCORD AND SATISFACTION.

To constitute "accord and satisfaction," it is necessary that money or property be offered in full satisfaction of demand, and be accompanied by such acts and declaration as amount to condition that money or property, if accepted, must be accepted in satisfaction.

5. ACCORD AND SATISFACTION.

In action to recover balance due on open account, whether there was accord and satisfaction by debtor's surrender of mortgaged property in full settlement of entire balance due by debtor individually and as guarantor held for jury.

HON HARVEY McGEHEE, Judge.

APPEAL from the circuit court of Marion county HON. HARVEY MCGEHEE Judge.

Action by the Lampton Company against Warren H. Stovall. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

T. B. Davis, of Columbia, for appellant.

The appellee was relieved of any necessity of advertising and selling the property and the parties placed no special value on the property. In 1 C. J., page 529, sec. 15, it is stated that mere inadequacy of consideration constitutes no ground for impeachment more than in any other case of contracts. It is enough if it appears that the creditor receives any distinct benefit from the substituted contract which otherwise he would not have had, or that there should be some detriment, however slight, to the debtor.

Erie Forge Co. v. Pennsylvania Iron Works Co., 22 Pa. Sup. 550, 555.

According to our court it will make no difference whether Mr. Stovall settled his debt with the Lampton Company for an amount less than he owed or not. It was held in the case of Clayton, Admr., v. Clark, 74 Miss. 499, that the acceptance from the maker by the payee of a note of a sum less than the amount due with an agreement that it is received in full satisfaction accompanied by a surrender of the note extinguishes the entire debt.

Erye v. Hubbell, 17 L.R.A. (N.S.) 1197; 1 C. J., page 551, sec. 70; Darrill v. Dodd, 78 Miss. 912; Greener & Son v. Cain & Son, 137 Miss. 33, 101 So. 859.

An examination of the texts and cases shows that in those jurisdictions holding that there must be a consideration for an accord and satisfaction, it is also held that a very slight advantage to the one party or trifling inconvenience to the other will support it; also where property is delivered in settlement of the debt, the courts will not concern themselves as to its value.

R. D. Ford, of Columbia, for appellee.

The claimed contract was nothing more than an unexecuted accord revokable at the pleasure of either party.

The situation of the parties after this claimed agreement had been made was simply such that they had an unexecuted contract of accord, revokable at the pleasure of either party and of no force whatever until actual performance of the agreement was had.

Until satisfaction an accord is revokable at the pleasure of either party.

1 C. J., page 533, par. 23; Foster v. City of Meridian, 150 Miss. 715, 116 So. 820.

It strains one's credulity to believe that the appellee, who held an undisputed, liquidated debt against the appellant for six hundred sixty-seven dollars and nineteen cents secured by a deed of trust admitted by the appellant to be valid covering live stock which brought at a public sale one hundred twenty-six dollars and which was sold on credit for two hundred forty-seven dollars and fifty cents, would be willing to settle the claim by taking the live stock over. But it is a greater strain on one's credulity to have to believe that if an accord had been reached between the appellee and the appellant that this debt for six hundred sixty-seven dollars and nineteen cents was settled for this live stock, that the appellant should not have demanded a clean receipt or surrender of the cancelled indebtedness, or surrender of the cancelled deed of trust, or the appellee should not have demanded a bill of sale.

OPINION

Cook, J.

This is an appeal from a judgment of the circuit...