Western Union Telegraph Company v. Arkadelphia Milling Company
| Decision Date | 08 January 1923 |
| Docket Number | 70 |
| Citation | 246 S.W. 482,156 Ark. 370 |
| Parties | WESTERN UNION TELEGRAPH COMPANY v. ARKADELPHIA MILLING COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Clark Circuit Court; George W. Hays, special judge reversed.
Judgment reversed.
Francis R. Stark, J. H. & D. H. Crawford and Rose Hemingway, Cantrell & Loughborough, for appellant.
1. The transactions between the parties cannot be construed as an accord and satisfaction. They fall short of a good accord and satisfaction in three respects: (1) The debt of the telegraph company for the April tolls against the milling company was not in dispute. (2) The milling company did not clearly state, or even remotely suggest, that the check sent to the telegraph company was in full payment of the latter's claim. (3) The telegraph company was not called upon to make an election between accepting a check tendered in full payment, or returning it rather than agree to the debtor's terms. Arkansas cases relied on by appellee are not applicable to the facts in this case, viz: 94 Ark. 158; 148 Id. 512; 114 Id. 559; 122 Id. 121. But these cases do set out what constitutes a good accord and satisfaction. See also 67 Kan. 194, 100 Am. St 368; 37 Minn. 418, 35 N.W. 1; 1 Corpus Juris, 554, § 74. Further, as sustaining the position that there was not an accord and satisfaction, see: 56 Ark. 37; 216 Mass. 204; 51 L. R. A. (N. S.) 315; 21 N.J.L. 391; 47 Am. Dec. 169; 23 Am. Dec. 566 and note; 10 Ind.App. 613; 38 N.E. 340; 12 Ind.App. 677; 40 N.E. 30; 21 Ky. L. Rep. 421; 51 S.W. 616; 99 Mich. 247; 41 Am. St. 597; 151 Mo. 671; 51 S. W, 738; 22 Ky. L. Rep. 498; 58 S.W. 323; 155 Pa. 30; 25 A. 996; 91 Md. 144; 50 L. R. A. 401; 89 Ky. 429; 12 S.W. 926; 81 Ga. 531; 7 S.E. 623; 145 Mass. 379; 14 N.E. 177; 56 Minn. 13; 67 N.W. 635; 58 Vt. 551; 5 A. 407; 1 Rul. Cas. Law, 198, § 33; 1 Corp. Jur. 557, § 80.
2. An accord and satisfaction is necessarily based on a new contract for which there must be a new consideration. 55 Ark. 369; 112 Ark. 223, 226; 126 Ark. 327; 80 Neb. 551; 14 L. R. A. (N. S.) 443.
3. The alleged accord and satisfaction, if permitted to stand, would violate the Interstate Commerce Act and Federal interstate commerce rules and regulations. U. S. Comp. Statutes, 1916, § 8564; 162 U.S. 197; 168 U.S. 144; 71 F. 672; 226 U.S. 286; 209 U.S. 56; 195 F. 330; 149 P. 436; 228 F. 335; 144 S.W. 1080; 154 S.W. 465; 100 Ark. 22; 106 Ark. 237; 124 Ark. 326; 198 S.W. 1132; 93 So. 238; 241 U.S. 190; 163 P. 836; 167 N.W. 475; 185 S.W. 1145; 116 N.E. 475; 256 U.S. 406.
McMillan & McMillan, for appellee.
1. The question here is not, as suggested by appellant, "an accord and satisfaction effected by this transaction between the milling company and the telegraph company," but, taking the findings of the lower court as conclusive as far as the evidence warrants, and giving to the facts disclosed the strongest inference of an intent to settle which their legal tendency will bear, the question is, do they sustain the court's finding? 53 Ark. 75-80; 54 Id. 229-235; 149 U.S. 43, 37 Law. Ed. 642; 81 Ark. 337. Appellee did not in words say that the check was in full settlement of the balance owing on the April account but the statement accompanying it was a demonstration in figures that the check was in full settlement of that account. The intent was clear. 148 Ark. 512. That there was an accord and satisfaction see 122 Ark. 212; 114 Ark. 559; 148 Ark. 512. There was a dispute as to the amount due appellant growing out of the counterclaim or set-off for which the appellee contended it was entitled to have credit. 22 R. I. 66; 46 A. 182; 4 A. L. R. 471 (1919); 161 Ill. 339; 108 Mich. 58; 31 L. R. A. 171; 65 N.W. 664. This is an executed contract, wherein there was no extortion or duress, and appellant is seeking to set aside the settlement it made. Turpin v. Antonio, 153 Ark. 377; 49 Ark. 70; 145 Ark. 185; 130 Ark. 520.
2. As to the contention that the accord and satisfaction was illegal because in violation of the interstate commerce act and interstate commerce rules and regulations, there is nothing in the record from which a violation of any law can even be inferred. Before the case can be reversed, the evidence must be such as to exclude every other reasonable inference. 53 Ark. 327. The contract was proved, and, in the absence of evidence to the contrary, the law presumes it was legal. The lower court's finding that it was not a device to evade the law is not against the evidence, and the settlement should be upheld. 59 Law. ed. 805.
This is an action by the appellant against the appellee. The appellant in its complaint alleged that the appellee was due it for tolls on telegrams and cablegrams transmitted for the appellee and the revenue tax thereon in the sum of $ 448.50, for which it prayed judgment. The appellant filed as an exhibit to its complaint an itemized statement of its account showing the above amount as the balance due it. The Appellee, in its answer, admitted the service, but set up, among other things, in its defense to appellant's claim, an accord and satisfaction thereof for the April account. The appellant answered the appellee's plea of accord and satisfaction, denying the same.
The cause, by consent of parties, was tried by the court sitting as a jury upon the following agreed facts:
It is also agreed that the following statement accompanied the said letter and check as a part of the said transaction and may be considered as a part of it, to-wit:
The check referred to was accepted and cashed by the telegraph company in due course of business. The milling company contends that the above transaction constitutes an accord and satisfaction of the April account for tolls due by it. The telegraph company contends it does not constitute an accord and satisfaction, and further, that same could not be allowed as an accord and satisfaction without violating interstate commerce rules, and, if paid and allowed as an accord and satisfaction, it would be equivalent to giving the milling company an unlawful rebate.
It is agreed that the account for message tolls sued for is due to the telegraph company, with interest, unless the milling company is entitled to retain $ 233.67 on its plea of accord and satisfaction, and that in any event the milling company will not be entitled to recover any other sum on its answer and set-off in this action.
The trial court found that the appellee's plea of accord and satisfaction should be sustained, and that the appellant was not entitled to recover judgment for $ 233.67, its claims for tolls during the month of April, 1921, with interest thereon. From the judgment entered in accordance with this finding is this appeal.
The undisputed facts, established by the evidence set forth in the agreed statement of facts, do not constitute an accord and satisfaction, and the court should have so declared as a matter of law. The agreed statement shows that on May 1, 1921, the appellee was indebted to the appellant in the sum of $ 388.83. This indebtedness was not disputed by the appellee. The appellee was making a claim against the appellant for alleged damages in the sum of $ 233.67, but the appellant disputed this claim. The appellee made up a statement of the account showing its indebtedness to the appellant and appellee's claim, and deducted the amount of its claim from the amount it conceded to be due the appellant, and inclosed the appellant a check for the balance, with the statement that it was "holding up" or holding out the amount of its claim. But it will be observed that the appellee did not, in its letter, say to the appellant that the check was intended in full payment of the amount which it conceded to be due the appellant. Nor is there anything in the agreed statement to justify the inference that, if the appellant cashed the check, it would do so with the understanding that it was thereby receiving full payment of its account against the appellee.
Giving the testimony, as we must, its strongest probative force in favor of the appellee, the only reasonable inference to be drawn is that the appellee was making a claim against the appellant for the sum of $ 233.67, which, if appellant conceded, would reduce the appellant's account to the sum of $ 155.16, and that appellant was sending its check to cover the amount and to be applied in payment of the account as thus stated. But appellee did not, in its...
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