Tarrant Wholesale Drug Co. v. Kendall, 11961.

• Decision Date: 19 October 1949
• Docket Number: No. 11961.,11961.
• Citation: 223 S.W.2d 964
• Parties: TARRANT WHOLESALE DRUG CO. v. KENDALL et ux.
• Court: Texas Court of Appeals

223 S.W.2d 964

TARRANT WHOLESALE DRUG CO. v. KENDALL et ux.

No. 11961.

Court of Civil Appeals of Texas. San Antonio.

October 19, 1949.

Hyde, Barber & Shireman, Corpus Christi, Harold Alberts, Corpus Christi, for appellant.

Lyman & Pittman, Corpus Christi, for appellees.

NORVELL, Justice.

Appellant submits this appeal upon six points of error. The appellees present serious objections to our consideration of any of these points because of the lack of proper foundation in the motion for new trial. Two of the points (the third and sixth) seek to question the sufficiency of the evidence to support the jury's findings in answer to Special Issues Nos. 4 and 16. The sixth point, relating to Special Issue No. 16, asserts that said issue was not a controlling one. Even if this contention be true, it appears that appellant was not prejudiced in any way, consequently, no reversible error is shown.

We are of the opinion that the third point, relating to Special Issue No. 4, may be considered. This issue relates to appellees' defense of accord and satisfaction.

This action grew out of certain contracts relating to the sale of whiskey by the appellant to the appellees. The appellant's second amended original petition, upon which they went to trial, declared upon a verified account for the sum of $6,723.65. The appellees denied under oath the correctness of the account and alleged that they had paid to appellant the sum of $1,474.45 in full settlement of said claim. The jury found that the account was true and correct, but also found in favor of appellees upon their plea of accord and satisfaction.

The jury found that on December 10, 1946, a dispute existed between the parties relating to the claim sued upon (Special Issue No. 2); that the dispute was urged in good faith by the appellees (Special Issue No. 3); and that under all the facts and circumstances the appellant retained possession and control of a cashier's check for $1,474.45 for an unreasonable length of time (Special Issue No. 4).

It is this answer to Special Issue No. 4 which appellant asserts is contrary to the evidence.

The record discloses that appellant and appellees entered into certain agreements relating to the purchase of whiskey, and that as a result appellees paid out the sum of $6,750 which they claimed should be properly offset against appellant's account. The appellant took the position that this $6,750 was paid to a third party and hence was not a proper offset. This resulted in a dispute which the jury found was urged in good faith by the appellees. On December 10, 1946, the appellees wrote a letter to appellant in which they reviewed the controversy. Appellees admitted that they owed the sum of $6,724.45, but asserted that they were entitled to a credit of $5,250, which was the balance remaining of the $6,750 above mentioned. A cashier's check for $1,475.45 payable to appellant was enclosed in the letter, which contained the statement that the check was "being sent to you only in full and final payment and settlement of any and all amounts owed by us or by Hotel Liquor Store or Hotel Package Store of Corpus Christi, Texas, to you under the terms of any and all contracts and agreements outstanding with you or by ourselves or said store."

On December 13, 1946, the attorney for appellant wrote a letter to appellees which contained the following statement, "The cashier's check which you tendered in the amount of one thousand four hundred seventy-four dollars and forty-five cents ($1,474.45) is hereby refused and not accepted, except as a part payment of your account."

On December 19, 1946, appellant filed its original petition in this action, alleging that appellees had tendered a check for $1,474.45 but had failed and refused to make any additional payments. Appellant prayed for judgment against appellees for $5,625 "in addition to the tendered check for $1,474.45."

On October 22, 1947, appellant filed a first amended petition in which it was alleged that appellees "tendered a check for $1,474.45, which check was refused and is here now tendered into the registry of the court, and (appellees) have failed and refused to make any additional payments."

On November 1, 1948, appellant filed its second amended petition setting up a sworn account. This was the petition upon which the trial was had, and it contained an allegation that the check for $1,474.45 "was refused and is now tendered into the registry of the court."

In Root & Fehl v. Murray Tool Company, Tex.Com.App., 26 S.W.2d 189, 191, 75 A.L.R. 902, it was said that: "It is the settled law of this state that, when an account is made the subject of a bona fide dispute between the parties as to its correctness, and the debtor tenders his check to the creditor upon condition that it be accepted in full payment, the creditor must either refuse to receive the check or accept the same burdened by its attached condition. If he accepts the check and cashes the same, he impliedly agrees to the condition, although he may expressly notify the debtor that he is not...