Whayne Supply Co. v. Gregory

• Decision Date: 22 June 1956
• Citation: 291 S.W.2d 835
• Parties: WHAYNE SUPPLY COMPANY, Appellant, v. I. H. GREGORY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 835

291 S.W.2d 835

WHAYNE SUPPLY COMPANY, Appellant, v. I. H. GREGORY, Appellee.

Court of Appeals of Kentucky.

June 22, 1956.

Wheeler & Marshall, Paducah, Stites, Wood, Helm & Peabody, Louisville, for appellant.

Richard R. Bryan, Charles W. Runyan, Paducah, for appellee.

CAMMACK, Judge.

The appellant, Whayne Supply Company, instituted this action to recover the sum of $420.27 alleged to be due from the appellee, I. H. Gregory, on an open account; the further sum of $147.45 a month, from August 7, 1953, for rental alleged to be due on a sheepsfoot roller, and sought also the recovery of the roller; or the sum of $875, its alleged value.

In his answer and counterclaim, the appellee admitted an indebtedness to the appellant on the open account in the sum of $306.58, and on the roller in the sum of $343.10. In his counterclaim, he alleged the breach of a written express warranty on the sale of a Caterpillar Model D-4 Tractor, which he claimed he had purchased from the appellant on March 2, 1953. He sought to recover the sum of $5,000, the alleged difference in the value of the tractor, as warranted, and as delivered, and the further sum of $9,000, alleged to have been the damage sustained by him because of the loss of the use of the tractor as a result of the breach of warranty. After the case was set for trial, the appellee filed an amended answer and counterclaim, again pleading the express warranty printed in the contract, and also his reliance thereon.

Apparently by consent, the case was tried before a jury. The trial resulted in the following findings:

For the appellant:

1. On the open account, $306.58,

2. On the roller, 343.10 and a finding that there was an agreed sale of the roller from the appellant to the appellee;

For the appellee on his counterclaim:

1. On the difference in the value of the tractor, $2,000.00,

2. For loss of use of the tractor and equipment, $4,000.00.

The case was tried in the lower court in three parts, namely, the open account, the sheepsfoot roller, and the D-4 tractor. We will discuss the case in the same manner.

I. The Open Account. The appellant introduced evidence showing an open account against the appellee in the amount of $420.27. This sum represented parts and labor furnished on various pieces of equipment Gregory owned between February 26, 1953 and April 28, 1954. The appellee admitted owing $306.58 on the open account. He contended, however, that the difference of $113.69 represented parts that were used to repair a new D-4 tractor (one of the subjects of the dispute) within the warranty period. The appellee contended further that in August or September, 1954, he and Marks, local manager for the appellant in Paducah, went over the account and agreed upon an amount due. Gregory admitted that nothing had been paid on the account, and Marks testified that his agreement with Gregory was conditioned upon payment of the account within a reasonable time, which he considered to be 30 days. The appellee apparently understood that the account could be paid within 10 days or two weeks; but he testified that he had never agreed to pay it at all.

The trial judge instructed the jury to find for Whayne and to award it such sum as they might believe from the evidence that Gregory owed Whayne for parts, supplies and services--the amount to be not less than $306.58 nor more than $420.27. The jury awarded the sum of $306.58.

On this appeal, the appellant contends that the trial judge was in error in submitting to the jury the question of the amount due on the open account, and that he erred in overruling its motion for a directed verdict. The appellee contends that there was sufficient evidence to justify submitting to the jury the question of the amount due on the open account.

The appellee's failure to pay the account as agreed upon between him and Marks, left the agreement an executory accord without satisfaction. An accord without satisfaction is unenforceable and does not supersede or dissolve the original claim. Moers v. Moers, 229 N.Y. 294, 128 N.E. 202, 14 A.L.R. 225. The rule in this jurisdiction is stated in Elliott v. Dazey, 19 Ky. 268, 3 T.B.Mon. 268, 269, as follows:

'It is laid down in all the books which treat of the subject, that a mere accord, without satisfaction received, is no plea in bar, in the mouth of a defendant who is sued in any action to which an accord and satisfaction may be pleaded, and one of the reasons assigned is, that no action lies on such accord, and therefore it ought not to be a bar for a defendant. Indeed if it is no defense for a defendant, it ought not to be cause of action for a plaintiff, and the rule must hold good both ways, and it may be considered as well settled, that an accord furnishes no ground for either cause of action, or defense, and of course the court below did not err in instructing the jury to disregard these counts, and the plaintiff was bound to resort to his action of tort for the fraud.'

In view of the appellee's admission that he did not pay the debt, the appellant was entitled to recover the full amount of the account. The trial judge should have directed a verdict for the appellant in the amount of $420.27. So much for the open account.

II. The Sheepsfoot Roller. On April 7, 1953, the appellant leased to the appellee a used sheepsfoot roller for a guaranteed minimum term of four months at a rental of $147.75 per month. The written lease provided that the lease should continue in full force and effect until the leased property was returned to the appellant-lessor. On the same day, a written purchase-option was entered into by the parties. The appellee was granted the right to purchase the roller for $875, the purchase price to be credited by 90 per cent of any sums paid as rent under the lease. The option was to expire August 7, 1953. It provided that written notice of the exercise of the option be given to Whayne, the appellant. The option provided further that no modification of its terms should be binding on either party unless accepted in writing. The appellee paid rent for four months. He did not exercise the option prior to its expiration, did not pay any further rent, and did not return the roller. Gregory admitted that no written modification or extension of the contract was ever made.

The appellee admitted all the facts set out above, but stated that after the option had expired, the appellant had billed him on the open account for only the amount necessary to exercise the option. He claims also that at the meeting with Marks in August, or September, 1954, Marks agreed to accept that amount and consider the transaction a sale of the roller. Marks denied such an agreement.

The trial judge submitted to the jury the question whether, after the expiration of the option, Marks agreed to a sale of the roller to the appellee. The jury found that an agreement had been reached, and directed that Whayne recover $343.10 from Gregory; and also, that title to the roller was in the appellee. The appellant maintains that the trial judge should have (1) sustained its motion for a directed verdict; (2) allowed it recovery for rent on the roller from August 7, 1953; and (3) recovery of the roller, as provided in the lease agreement. On the other hand, the appellee...