Yazoo & M. V. R. Co. v. Fulton

• Decision Date: 18 December 1893
• Citation: 71 Miss. 385,14 So. 271
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD CO. v. J. W. FULTON
• Court: Mississippi Supreme Court

14 So. 271

71 Miss. 385

YAZOO & MISSISSIPPI VALLEY RAILROAD CO. v. J. W. FULTON

Supreme Court of Mississippi

December 18, 1893

FROM the circuit court of Tunica county, HON. R. W. WILLIAMSON Judge.

The opinion sufficiently states the case.

Reversed.

Mayes &amp Harris, for appellant.

1. There was a complete accord and satisfaction. Failure to pay the money resulted from a judgment against the defendant as garnishee. The judgment must be taken as the performance of the accord. In no event could the money have gone to the plaintiff after such garnishment. The defendant carried out the contract in the only manner allowed by law. Heirn v Carron, 11 Smed. & M., 361.

2. Judgment in Tennessee against the garnishee suspended, pro tanto, plaintiff's right of action. At most there should have been judgment for only the excess over eighty dollars. 20 Vt. 139; 13 Ill.App. 572.

F. A. Montgomery, Jr., for appellee.

It is evident that the agreement for a compromise was to be final only upon payment of the money. The parties contemplated performance as part of the accord and satisfaction. Barnes v. Lloyd, 1 How. (Miss.), 584; Guion v. Doherty, 43 Miss. 538; Pulliam v. Taylor, 50 Ib., 251; Whitney v. Cook, 53 Ib., 551; Baum v. Buntyn, 62 Ib., 110; 1 Sutherland on Damages, § 432.

OPINION

COOPER, J.

The facts involved in this cause, chronologically stated, are as follows:

On the twenty-sixth of January, 1893, one of the trains of appellant ran over and injured a mule belonging to appellee. On the seventeenth day of March following, B. J. Semmes & Co. sued out an attachment in the proper court in the state of Tennessee against appellee on a debt of $ 182.40, and summoned the appellant as garnishee therein. On the day following the appellant answered, stating that it had been informed that appellee claimed damages against it for the injury to his mule, which claim was contested, but stated that it would hold, subject to the attachment, whatever sum should be found due to appellee, on said claim. On the twenty-first day of April, appellee instituted suit against appellant before a justice of the peace in this state to recover damages for the injury to the mule. On the twenty-second day of April, a train of appellant killed an ox of appellee, and on the twenty-fifth day of April he sued appellant before the same justice to recover its value. On the eleventh day of May, judgments by default were rendered against appellant in these cases, and on the same day it prosecuted appeals therefrom to the circuit court.

On September 7, an agreement of compromise was entered into between appellee and the appellant, by which appellee agreed to accept eighty dollars as payment in full of the judgments recited, and to dismiss the suits at his cost. The agent of the company, representing to appellee that he would remit to him the money, procured him to sign a receipt therefor, but no money was, in fact, paid or remitted to appellee. On September 9, the appellant filed another answer as garnishee in the attachment suit of Semmes & Co. against appellee, in which it stated that "by an agreed settlement of a certain claim due J. W. Fulton by said company for stock killed, say that said company has agreed to pay him eighty dollars for said claim." On this day (September 9) the appellee was in the city of Memphis, and called on the proper officer of the company, and requested payment of the eighty dollars agreed to be paid to him by the company; but this officer, saying that he then had no voucher to pay by, requested appellee to return in an hour and he "would then see about it." Appellee returned, and found that appellant's agent had procured the attendance of an officer, who served upon appellee a summons in the attachment suit of Semmes & Co. Appellee then notified the agent of appellant that he repudiated the agreement of compromise, and would not be bound thereby. On the same day judgment was rendered in the attachment suit of Semmes & Co. against appellee in favor of the plaintiffs for the sum of $ 195.02 and costs of suit, and against appellant, as garnishee, for the sum of $ 80, admitted by its answer to be due.

In the circuit court, the two suits appealed from the justice of the peace were, by consent of parties, consolidated, and a trial of the same resulted in a verdict and judgment in favor of the plaintiff for $ 175, from which the defendant appeals.

No point was made in the court below, nor is any now made here, as to the right of the plaintiff to the damages awarded by the jury, unless he is precluded by the adjustment made, in which he agreed to accept $ 80 in full of his demand, or unless, not being bound by that agreement, his right to a present recovery is limited to the balance due on his claim, after making a deduction of the sum for which judgment has been rendered against appellant as garnishee.

It is entirely clear from the evidence that there has been no accord and satisfaction of the plaintiff's claim. That a present payment of the sum he agreed to accept was contemplated by the parties is made indisputable by the fact that the plaintiff gave a receipt for the sum as actually paid. It is true that a promise may be accepted as satisfaction of an accord, but when, as here, it is manifest that performance was contemplated by the parties, the mere promise to perform is not satisfaction. Whitney v. Cook, 53 Miss. 551; 1 Am. & Eng. Enc. of L., 94. The defendant has not paid the sum agreed to be received by the appellee, and his right to recover on the original demand was not at all affected.

The remaining question involved is as to the effect of the judgment against the garnishee in the attachment suit of Semmes & Co. against Fulton, the appellee. The action of the appellee was instituted in the justice's court, in which there are no written pleadings, and, on appeal to the circuit court, was there triable de novo on oral pleadings, and in such cases the pleadings are presumed to have been of such character as to warrant the introduction of any evidence appearing in the record. The defendant introduced in evidence the record of the attachment suit, and is entitled to have it considered in any light in which it should have been available to it.

There is a wide diversity of views entertained by the courts of the various States as to the effect of a judgment against a garnishee who is afterwards sued by the original creditor, the defendant in attachment or judgment. In England it is held that a judgment against the garnishee is a bar to an action upon the same debt. McDaniel v. Hughes, 3 East 367. The courts of Florida, Indiana, Kentucky, Maine, and Massachusetts have announced the same rule. Sessions v. Stevens, 1 Fla. 233; Covert v. Nelson, 8 Blackf. 265; King v. Vance, 46 Ind. 246; Coburn v. Currens, 1 Bush 242; McAllister v. Brooks, 22 Me. 80; Norris v. Hall, 18 Me. 332; Perkins v. Parker, 1 Mass. 117; Hull v. Blake, 13 Mass. 153.

In other states and in the supreme court of the United States it is held that the judgment on pendency of garnishment proceedings may be pleaded in abatement of the plaintiff's suit. Embur v. Hanna, 5 Johns. 101; ...