Summary
In Duckworth, Duckworth entered into an agreement with the State Highway Department (SHD) that would allow the SHD to enter the Duckworths' land in order to construct a portion of Highway 49. Id., 178 Miss, at 39, 172 So. at 148.
Summary of this case from Lange v. City of BatesvilleOpinion
No. 32555.
February 1, 1937.
1. ACCORD AND SATISFACTION. Compromise and settlement.
Where check or warrant recites that it is given in full settlement of all demands, or accounts, it is when accepted, full settlement, although there might be in fact more due than recital in check or warrant shows.
2. EVIDENCE.
Where written contract is executed, all antecedent agreements between parties are merged into it and parol evidence of antecedent agreements is inadmissible to contradict recitals of written instrument.
3. EVIDENCE.
In action based on highway department's failure to comply with alleged agreement to construct approaches to plantation road across highway for landowners who conveyed right of way to department, parol evidence that highway department's agents agreed to construct approaches prior to execution of deed of right of way, which did not contain such agreement, held inadmissible, notwithstanding deed contained words "and other valuable consideration" after reciting specific consideration.
4. HIGHWAYS.
Members of highway commission could not authorize agents to bind commission unless an order therefor was entered upon its minutes authorizing giving of such authority, or unless the order constituting a contract recited the making thereof, and its approval by highway commission.
APPEAL from circuit court of Covington county. HON. EDGAR M. LANE, Judge.
E.R. Holmes, Jr., Assistant Attorney General, for appellant.
The requisition marked "in full settlement" is an accord and satisfaction.
Blue Ribbon Creamery v. Monk, 168 Miss. 130; Y. M.V.R.R. Co. v. Sideboard, 161 Miss. 4; May Bros. v. Doggett, 155 Miss. 849; Phillips v. St. Paul Ins. Co., 156 Miss. 41.
If a creditor accept from his debtor a sum of money tendered in full satisfaction of his debt, and which would not otherwise have been paid to him, there is an accord and satisfaction.
Greener Sons v. Kane Sons, 137 Miss. 33; Clayton v. Clark, 74 Miss. 499.
No agent can bind the Highway Commission unless express authorization or artification is shown on the minutes of the Commission.
Section 5006, par. (b), Code of 1930.
By virtue of section 4992, Code of 1930, the Legislature directed the State Highway Commission to employ a secretary and to require him to keep proper minute books and further directed that "all proceedings of the State Highway Commission shall be entered upon the minutes of said Commission in a minute book to be provided and kept for that purpose." The court has held in many cases that such statutes are mandatory and that the minutes of the boards of supervisors and of the State Highway Commission are the sole and conclusive evidence of the acts of the boards and Commission.
Bridges Hill v. Board of Supervisors, 58 Miss. 817; Groton, etc., Co. v. Board of Supervisors of Warren County, 80 Miss. 214, 31 So. 711; Marion County v. Foxworth, 83 Miss. 677, 36 So. 36; Smith v. Board of Supervisors, 124 Miss. 36, 86 So. 707; Smith County v. Mangum, 127 Miss. 192, 89 So. 913; Hunter v. Bennett, 149 Miss. 368, 115 So. 204; Pearl Realty Co. v. State Highway Commission, 170 Miss. 103.
Testimony of plaintiffs as to market value of entire property before and after taking was inadmissible and prejudicial.
Knight v. State Highway Commission, 170 Miss. 16, 154 So. 263; Parker v. State Highway Commission, 173 Miss. 213.
McIntosh McIntosh, of Collins, for appellees.
It is admitted that the Highway Commission cannot be bound by contract except by virtue of an order on its minutes expressly authorizing liability.
An accord and satisfaction operates to distinguish liability of a debtor only to the extent that the creditor knew that the debtor intended to be discharged.
Blue Ribbon Creamery v. Monk, 168 Miss. 130, 147 So. 329; Yazoo M.V.R. Co. v. Sideboard, 161 Miss. 4, 133 So. 669.
According to the undisputed evidence in this case, the appellee did not simply make a mental reservation that he would demand additional damages from the Highway Commission. Appellee honestly believed that approaches would later be constructed and that he would not be damaged further.
As we understand the law of this state, parole evidence may always be introduced to show to what extent the parties actually intended that an accord and satisfaction should reach.
Stovall v. Lampton Co., 164 So. 39; 1 C.J. 551, sec. 71.
Accord and satisfaction is properly a question to be determined by the jury under the circumstances in each case, and the verdict in appellee's favor therefor cannot now be disturbed.
The Commission went to the extent of forwarding corrected right-of-way deed and requisition to B. Duckworth to be presented to appellee, and by its pleas in the lower court it seeks to enforce the terms and conditions of the purported accord and satisfaction. This amounted to a ratification of the entire contract.
31 Cyc. 1280.
We fully realize that it is impossible for the appellee to claim damages against the Highway Commission under contract for consideration. On the other hand, the Highway Commission is attempting to enforce an accord and satisfaction contract against appellee by claiming that the real moving consideration promised by one of their employees was unauthorized. Our contention is this: that the Commission had a right to accept the entire transaction and become liable by virtue of its contract; but since it failed to do so it must be deemed to have rejected the transaction in toto and is now liable for actual property damages sustained under the view of the Supreme Court in this state in the case of Parker v. Highway Commission, 173 Miss. 213, 162 So. 162.
Appellee respectfully urges that when the Highway Commission of this state seeks to enforce a contract of accord and satisfaction to bar an individual from claiming property damages against it, the laws of this state applicable to claims between individuals apply.
Matthews v. Delta Southern Ry., 43 So. 475; 48 Century Digest, Vendor Purchaser, sec. 627.
Appellees respectfully urge that the Supreme Court of this state has repeatedly held that a grantor can successfully attack the stipulated consideration of a deed by parole evidence; establish and enlarge consideration when the instrument stipulates "other valuable consideration."
Haden v. Sims, 150 So. 210.
Appellees, E.J. Duckworth and his wife, filed an original bill in the chancery court of Covington county for the reformation of a deed executed by them to the State Highway Commission, or Department, conveying a right of way through certain lands owned by them between Mt. Olive and Collins, Mississippi, and also for the specific performance of an alleged agreement between them and agents of the State Highway Department for the construction of approaches on a plantation road crossing the state highway.
The chancery court sustained a demurrer to said bill, holding that neither stated a case for reformation nor for specific performance, and that, if the appellees were entitled to relief, there was an adequate remedy at law, and they would have no occasion to invoke the aid of equity. Appellees moved the court to transfer the case to the circuit court, which the court did, and thereupon the appellees filed their declaration in the circuit court alleging that they were the owners, in fee simple, of the 40 N.W. 1/4 of N.E. 1/4 of section 4, township 8 north, range 16 west situated in Covington county, and that in the year 1931 the State Highway Commission, through agents and employees, in the performance of their duty under chapter 122, Code of 1930 (section 4989 et seq.), determined to construct, as a part of highway No. 49, a road between Mt. Olive and Collins, and in order to do so it was necessary to procure rights of way that negotiations were had with appellees, and they were offered $268.25 cash for a right of way; that a deed was signed by appellees for same; and that there was a verbal agreement to construct and maintain approaches so as to enable appellees to cross from one side of their lands to the other. This deed reads as follows:
"For and in consideration of Two Hundred Sixty-eight 25/100 ($268.25) dollars and other valuable consideration, the receipt of which is hereby acknowledged, we, the undersigned, hereby bargain, sell, convey and warrant unto the State of Miss., for the use of the State Highway Department, a strip of land one Hundred feet in width extending through, over and across the following described land in said County and State. Beginning at Sta. 304120 and ending at Sta. 321 90 of the final survey for the proposed road located in and across the NW 1/4 NE 1/4 of Section 4, Township 8, Range 16, West, and containing 4.09 acres more or less. The consideration herein stated includes all damage to fences, property and the like, and the rebuilding of fences caused by the construction of said highway. Said strip of land is to be used as a part of the right of way for Federal Aid Project No. 200-C between Collins and Mt. Olive, and is to extend fifty feet right and left from the center line of said highway as now surveyed, and as shown by the plans for said highway on file in the office of the State Highway Department at Jackson, Mississippi. Witness my signature this the 15th day of April, A.D. 1931. E.J. Duckworth, Mrs. Lena Duckworth."
It is shown in the proof that in laying out the highway across said land there was a fill on one side and an embankment on the other several feet high.
It will be noted that the deed from appellees, among other things, recited that the consideration included all damages to fences, property, and the like, and the rebuilding of fences caused by the construction of the highway, and that the consideration was $268.25, "and other valuable consideration."
It is shown in the record that the State Highway Commission issued a requisition or warrant for $268.25 payable to appellees for the right of way, approved the allowance by order entered on their minutes, and a voucher was issued thereon. The requisition or warrant so issued by the State Highway Commission reads as follows:
"To the Auditor of Public Accounts. "State of Mississippi.
"Requisition is hereby made for you warrant on the Construction Fund payable to Jim C. Duckworth, et ux, for $268.25 in full settlement of claims and accounts listed herein, which have been approved by the Mississippi State Highway Commission under date of April 4, 1931, as shown by page 555 of Minute Book 2, countersigned ____ Secretary, signed ____ Director, filed July 17, 1934. E.F. Stuart, Clerk."
And the auditor's warrant or voucher reads as follows:
"Office of the Auditor of Public Accounts of the State of Mississippi, Jackson, Mississippi. Auditor's warrant, No. 20716. To Jim C. Duckworth, Dr. $268.25. On account of Highway Department for Construction 2413 authorized by chapter 47, Acts 1930.
"Received Auditor's Warrant of the amount and No. shown by the foregoing in full of the foregoing claim. This the 15th day of April, 1931. Capital National Bank, Jackson, Mississippi."
This warrant was indorsed and collected by Duckworth, and the proceeds retained by him.
There was no rescission, or attempted rescission, of the contract by appellees, or tender of the money received, but they sought to prove by oral testimony that was admitted on the trial, over the objection of appellant, that there was a verbal agreement between appellant's agents and appellees that the State Highway Department would construct approaches so as to permit appellees to better use their lands, and there was a verdict for appellees in the sum of $625 against the Highway Department.
As stated, the appellant objected to the admission of this oral testimony, and the pleadings set up the facts that the deed and warrant included all damages, to fences, and the deed provided for the rebuilding of fences caused by the construction of the highway.
The alleged agreements relied upon by the appellees were antecedent to, or contemporaneous with, the execution of the deed; the warrant was issued and the money was received by appellees with the recitals recited above set forth in the warrant.
This court is thoroughly committed to the doctrine that, where money is paid with a recital that it is in full settlement of all demands, or of all accounts, or similar wording, when it is accepted, it is full settlement therefor, although there might be, in fact, more due than the recital in the check or warrant showed. See the following cases: Blue Ribbon Creamery v. Monk et al., 168 Miss. 130, 147 So. 329, 782; Yazoo M.V.R.R. Co. v. Sideboard, 161 Miss. 4, 133 So. 669; May Bros. v. Doggett, 155 Miss. 849, 124 So. 476; Rucker v. King Const. Co., 159 Miss. 387, 131 So. 872; Greener Sons v. Cain Sons, 137 Miss. 33, 35, 101 So. 859; Phillips v. Ins. Co., 156 Miss. 41, 125 So. 705, and Alabama V. Ry. Co. v. Kropp, 129 Miss. 616, 92 So. 691.
This court is also committed to the doctrine that all antecedent agreements between parties are merged into the written contract when executed, and that parol evidence of such antecedent agreements is not admissible to contradict the recitals of the written instrument.
It is argued here that the words in the deed "and other valuable consideration" permit the introduction of the evidence here involved on the theory that it is permissible to show the real consideration of the instrument.
We do not think this principle is applicable to this case where the contract contains the quotation above set forth in the deed and in the voucher. The contract in this case has become the exponent of its own terms.
It is further insisted by the State Highway Commission, appellant, that the agents who were alleged to have made the agreement with appellees had no authority to make any agreement, and that the appellant is not bound thereby.
It is familiar law that boards can only bind the public by contracts entered on their minutes, and that the members, individually, of such a board as the Highway Commission, could not authorize an agent to bind it unless an order therefor was entered upon its minutes authorizing the giving of such authority, or unless the order constituting a contract recited the making thereof, and its approval by the Highway Commission. We think this principle is well established. Bridges et al. v. Board of Supervisors, 58 Miss. 817; Groton Bridge Mfg. Co. v. Warren County, 80 Miss. 214, 31 So. 711; Smith v. Board of Supervisors, 124 Miss. 36, 86 So. 707; Smith County v. Mangum, 127 Miss. 192, 89 So. 913; Hunter v. Bennett, 149 Miss. 368, 115 So. 204, and Pearl Realty Co. v. Highway Commission, 170 Miss. 103, 154 So. 292.
It was therefore error to admit oral proof of an agreement antecedent to, or contemporaneous with, the execution of the deed, and there was no authority, under the facts of this record, for the rendition of the judgment against the Highway Commission.
The judgment will be reversed and the suit dismissed.
Reversed and dismissed.