Opinion
No. 31928.
November 18, 1935.
1. ACCORD AND SATISFACTION.
Until satisfaction, accord is revocable at pleasure of either party, and until satisfaction original obligation remains in force and creditor may enforce it.
2. ACCORD AND SATISFACTION.
That creditor's employee, who took possession of debtor's livestock, was also trustee in deed of trust executed by debtor to creditor as security for open account, was not notice to debtor of revocation or intention to revoke accord agreed to between debtor and creditor, as respects contention by creditor that its taking possession of the stock through its trustee and proceeding to foreclose the deed of trust was conclusive evidence of a revocation of the accord, justifying peremptory instruction requested by it.
3. ACCORD AND SATISFACTION.
Where creditor's employee took possession of debtor's livestock, to consummate an accord of indebtedness owing by debtor to creditor, it was not necessary for debtor to notify employee that livestock was being surrendered only on condition that it be accepted in full satisfaction of debt.
4. ACCORD AND SATISFACTION.
To constitute "accord and satisfaction," it is necessary that money or property be offered in full satisfaction of demand, and be accompanied by such acts and declaration as amount to condition that money or property, if accepted, must be accepted in satisfaction.
5. ACCORD AND SATISFACTION.
In action to recover balance due on open account, whether there was accord and satisfaction by debtor's surrender of mortgaged property in full settlement of entire balance due by debtor individually and as guarantor held for jury.
APPEAL from the circuit court of Marion county; HON. HARVEY McGEHEE, Judge..
T.B. Davis, of Columbia, for appellant.
The appellee was relieved of any necessity of advertising and selling the property and the parties placed no special value on the property. In 1 C.J., page 529, sec. 15, it is stated that mere inadequacy of consideration constitutes no ground for impeachment more than in any other case of contracts. It is enough if it appears that the creditor receives any distinct benefit from the substituted contract which otherwise he would not have had, or that there should be some detriment, however slight, to the debtor.
Erie Forge Co. v. Pennsylvania Iron Works Co., 22 Pa. Sup. 550, 555.
According to our court it will make no difference whether Mr. Stovall settled his debt with the Lampton Company for an amount less than he owed or not. It was held in the case of Clayton, Admr., v. Clark, 74 Miss. 499, that the acceptance from the maker by the payee of a note of a sum less than the amount due with an agreement that it is received in full satisfaction accompanied by a surrender of the note extinguishes the entire debt.
Erye v. Hubbell, 17 L.R.A. (N.S.) 1197; 1 C.J., page 551, sec. 70; Darrill v. Dodd, 78 Miss. 912; Greener Son v. Cain Son, 137 Miss. 33, 101 So. 859.
An examination of the texts and cases shows that in those jurisdictions holding that there must be a consideration for an accord and satisfaction, it is also held that a very slight advantage to the one party or trifling inconvenience to the other will support it; also where property is delivered in settlement of the debt, the courts will not concern themselves as to its value. R.D. Ford, of Columbia, for appellee.
The claimed contract was nothing more than an unexecuted accord revokable at the pleasure of either party.
The situation of the parties after this claimed agreement had been made was simply such that they had an unexecuted contract of accord, revokable at the pleasure of either party and of no force whatever until actual performance of the agreement was had.
Until satisfaction an accord is revokable at the pleasure of either party.
1 C.J., page 533, par. 23; Foster v. City of Meridian, 150 Miss. 715, 116 So. 820.
It strains one's credulity to believe that the appellee, who held an undisputed, liquidated debt against the appellant for six hundred sixty-seven dollars and nineteen cents secured by a deed of trust admitted by the appellant to be valid covering live stock which brought at a public sale one hundred twenty-six dollars and which was sold on credit for two hundred forty-seven dollars and fifty cents, would be willing to settle the claim by taking the live stock over. But it is a greater strain on one's credulity to have to believe that if an accord had been reached between the appellee and the appellant that this debt for six hundred sixty-seven dollars and nineteen cents was settled for this live stock, that the appellant should not have demanded a clean receipt or surrender of the cancelled indebtedness, or surrender of the cancelled deed of trust, or the appellee should not have demanded a bill of sale.
This is an appeal from a judgment of the circuit court of Marion county for a balance alleged to be due to the Lampton Company on an open account.
For many years prior to 1931, the appellee company had been furnishing supplies to the appellant. To secure the account for supplies to be furnished to himself and tenants during the year 1931, the appellant executed a deed of trust on the crops to be grown by him that year, and on two mules and one horse. At the end of that year, after the crop had been sold and the proceeds applied to the payment of the account of the appellant and his tenants, there was due a balance of six hundred sixty-seven dollars and nineteen cents. The appellee did not furnish the appellant during the year 1932, and until November, 1932, no active steps were taken to enforce collection of this balance. In November, 1932, the appellee took possession of the livestock covered by the deed of trust, advertised and sold it under the terms of the deed of trust, and afterwards filed this suit to recover the balance alleged to be due after applying the proceeds of the sale.
The declaration, which originally sought to collect the balance due by the appellant, and his tenants for whom he was guarantor, was amended so as to eliminate any claim for the amount due by the tenants, and the cause proceeded to judgment for the balance alleged to be due by the appellant individually.
The defense interposed by the appellant was accord and satisfaction, and upon the evidence offered, the court peremptorily instructed the jury to return a verdict for the appellee for the amount sued for. On appeal, the only question presented is whether or not the proof tending to show that there was accord and satisfaction, by the surrender of the mortgaged property in full settlement of the entire balance due by the appellant individually and as guarantor, presented an issue of fact that should have been presented to the jury.
The appellant testified that after negotiations with the secretary and managing officer of the appellee company, it was agreed between them that the livestock covered by the deed of trust would be surrendered to the appellee in full settlement and satisfaction of all indebtedness owing by the appellant to the appellee; that in pursuance and consummation of this agreement, he kept the livestock up that night, and on the following morning delivered them to an employee of the appellee. The employee of the appellee to whom these animals were delivered was also the trustee in the deed of trust, and the appellant admitted that when this employee and trustee took possession of the livestock, he did not notify such employee that it was being surrendered in pursuance of the previous agreement that it would be accepted in full settlement of his indebtedness. The secretary and managing officer of the appellee with whom the agreement was alleged to have been made denied the agreement in its entirety.
In support of the action of the court in granting the peremptory instruction requested by it, the appellee makes two contentions: First, that the claimed contract was nothing more than an unexecuted accord which was revocable at the pleasure of either party; and, second, that no accord and satisfaction was shown, because the livestock was not delivered on condition that the same be accepted in full satisfaction of the debt.
In considering the propriety of the peremptory instruction in its favor, the appellee concedes, as it must, that the appellant's testimony was sufficient to establish an agreement to accept the livestock in full settlement of the debt; but it is argued that the fact that the appellee took possession of the stock through its trustee, and proceeded to foreclose the deed of trust, is conclusive evidence of a revocation of the accord.
It is undoubtedly true that until satisfaction an accord is revocable at the pleasure of either party, and that until satisfaction the original obligation remains in force and the creditor may enforce it. 1 C.J. 533.
In the case at bar, the appellant's evidence, if true, established the agreement, and we do not think the evidence tending to show a revocation is conclusive. Conceding, as we must for the purpose of this opinion, that the agreement to accept the livestock in full settlement of the appellant's indebtedness was actually made, when the employee of appellee appeared at appellant's home the following morning to take possession of the stock, he had a right to assume that this employee was acting in pursuance of the agreement had with the appellee's officer the day before. The fact that this employee happened to be also the trustee in the deed of trust was not necessarily notice to the appellee of a revocation or the intention to revoke, and, in order to consummate an accord, it was not necessary for the appellant to notify this employee that the livestock was being surrendered only on condition that it be accepted in full satisfaction of the debt. Upon the evidence, the legal requirement that it is necessary that the money or property be offered in full satisfaction of the demand, and be accompanied by such acts and declaration as amount to a condition that the money or property, if accepted, must be accepted in satisfaction, was met by the action of the parties at the time the agreement was made.
We think the issue of fact presented by the evidence should have been submitted to the jury under proper instructions.
Reversed and remanded.