Baum v. Buntyn

62 Miss. 110 | Miss. | 1884

Campbell, C. J.,

delivered the opinion of the court.

In the trial of this case the defendant contended that he had been discharged from the claim sued on by the agreement of the plaintiff to accept payment of the costs ofthecaséby him in satisfaction of the demand, and that he had paid the costs, and the suit had been dismissed in pursuance of the agreement.- There was evidence tending to support this position. The court instructed the jury, at the instance of the plaintiff, that the agreement referred to was no defense if the plaintiff’s demand had not been paid, and refused to instruct for the defendant that if the matter had been finally settled between the parties by an agreement that the defendant should pay the costs of the case for a full discharge from the claim, and he had paid the costs, he was thereby discharged from the demand.

This action was erroneous. If the plaintiff agreed to accept payment of the costs of the pending suit as a full satisfaction of the claim sued on, and the costs were paid in execution of the agreement thus to settle the matter, he could not afterward maintain a suit on the claim thus settled. The jury should have been so instructed, and it would then have been for it to say whether the plaintiff had agreed to accept payment of the costs as a satisfaction of his demand. The fact that judgment had been given against the defendant for the debt and costs by the justice of the peace did not alter the effect of the alleged agreement between the parties. An appeal had been taken, and the case was pending in the circuit court to be tried anew, and if the plaintiff agi’eed to release the defendant from the claim sued on upon his payment of all costs, and they were paid, this was an accord and satisfaction. This was the real point of dispute, and for the erroneous instruction, of the jury the judgment .is reversed and the cause remanded for a new trial.

Reversed.