Opinion
4 Div. 142.
April 11, 1950.
Appeal from the Circuit Court, Houston County, D.C. Halstead, J.
Alto V. Lee, III, and Huey D. McInish, of Dothan, for appellant.
When a debt or account is in dispute between debtor and creditor, and debtor offers creditor a sum in full settlement and sum is accepted by creditor, it is accepted only with the condition that it is in full satisfaction of the debt or account. Ex parte Southern Cotton Oil Co., 207 Ala. 704, 93 So. 662.
P.S. Lewis, of Dothan, for appellee.
Payment of amount less than debtor's liability is not valid accord and satisfaction unless there is bona fide dispute as to amount due. Burden of proving plea of payment is upon defendant. Ex parte Southern Cotton Oil Co., 207 Ala. 704, 93 So. 662; Abercrombie v. Goode, 187 Ala. 310, 65 So. 816; Hodges v. Tennessee Implement Co., 123 Ala. 572, 26 So. 490; Wilson v. Monette, 224 Ala. 106, 139 So. 264.
This is a suit on a promissory note.
In the court below, the judge, without the aid of a jury, rendered a judgment in favor of the plaintiff.
The only contention in brief of appellant's counsel is that after suit was filed his client tendered his check for $309.10 endorsed "Acct. in full"; that at this time the amount then due was in dispute and therefore the cashing of said check by the appellee constituted an accord and satisfaction. Ex parte Southern Cotton Oil Co., 207 Ala. 704, 93 So. 662.
This insistence is based primarily on the fact that suit was originally filed for $382.10 after an amount due of $359.10 had been agreed upon by the parties and $50.00 had been paid by the appellant subsequently to said agreement.
The complaint was amended and it is stated therein that the claim for $382.10 was an inadvertence and the purpose of the amendment was to correct the error and only $309.10 "was and is the only and intended amount to be claimed."
Clearly this error in the original complaint which was corrected by amendment would not of itself determine the factual issue as to a dispute in the amount agreed to be due on the indebtedness.
The appellant did not offer any testimony. The evidence, therefore, was without substantial dispute.
The court entered judgment for interest, court costs and attorney's fee. In effect he concluded that there was not any bona fide dispute between the parties with reference to the principal sum due on the indebtedness.
The evidence amply supports this judgment, and it is due to be affirmed. It is so ordered.
Affirmed.