Western Union Telegraph Company v. Arkadelphia Milling Company, 70

• Court: Supreme Court of Arkansas
• Writing for the Court: WOOD, J.
• Citation: 246 S.W. 482,156 Ark. 370
• Parties: WESTERN UNION TELEGRAPH COMPANY v. ARKADELPHIA MILLING COMPANY
• Docket Number: 70
• Decision Date: 08 January 1923

246 S.W. 482

WESTERN UNION TELEGRAPH COMPANY
v.
ARKADELPHIA MILLING COMPANY

156 Ark. 370

No. 70

Supreme Court of Arkansas

January 8, 1923

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.

OPINION

[156 Ark. 372] WOOD, J.

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 [156 Ark. 373] 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: [246 S.W. 483] "That the telegraph company and the milling company are corporations, as alleged. That the milling company was, on May 1, 1921, indebted to the telegraph company for tolls on messages sent by the telegraph company for the milling company in April, 1921, $ 347.41. That on May 1, 1921, the milling company was making a claim against the telegraph company for alleged damages for $ 233.67, on account of the incorrect transmission and delivery of a message sent by it to J. G. Bynum, at Indianola, in...