County of Campbell v. Howard

133 Va. 19 | Va. | 1922

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The questions presented by the assignments of error will be disposed of in their order as stated below.

1. Were instructions 1, 1-a and 1-b erroneous, in that they set up a wrong standard by which the jury were directed to measure the amount of recovery — • namely, the value of the benefit derived by the county from the services in question (i. e., the value of the services on a quantum valebat); instead of the value in itself of the work done (i, e., the value of the services on a quantum meruit)?

The question must be answered in the affirmative.

As said in Sedgwick on Damages (9th ed.), sections 649 and 650: “For property transferred or services rendered by one to another, the law implies a promise to pay what the thing or the property is worth. The party then recovers, to use technical language, on a quantum meruit or a quantum valebat: and the measure of damages becomes a question of evidence as to the value of the property or services. Nor can this rule be varied, except by express agreement. * * * When recovery is had on a quantum meruit for services rendered to or benefit conferred upon the defendant at his request, the measure of compensation is the value of the work done. * * not the benefit derived by the defendant from it; the same is true where the services or benefit are accepted by the defendant, though not originally rendered at his request. If the plaintiff has rendered services the measure of recovery is the value of the services, not of the product of the services.” (Italics supplied).

Again, in section 664 of the same valuable work, this is said: “If a servant fully performs his contract, but the contract allows him no definite compensation, he is allowed to recover on a quantum meruit the value of the services performed, without regard to the amount of benefit which the principal, or master, received from them.”

As appears from the authorities cited for the attorneys on the question under consideration, namely, Smith v. Packard, 94 Va. 730, 27 S. E. 586; B. & O. R. R. Co. v. Polly, Woods & Co., 14 Gratt. (55 Va.) 447; note to Cutter v. Powell, 2 Smith’s Lead. Cases (5th ed.), 42; and Burks’ PI. & Pr. (2nd ed.), p. 119, et seq.; the instructions under consideration were based on the erroneous idea that contracts for the manufacture of chattels, or for the construction of buildings, or other structures, out of materials furnished by a plaintiff, where the finished work is accepted by the defendant, stand upon the same footing with respect to the measure of compensation, as contracts for personal services rendered by a plaintiff at the instance and request of and accepted by the defendant. There is a marked distinction between the two classes of contracts. In the former class, tangible property, consisting of the finished article, or structure, is actually transferred by the plaintiff to the defendant, the value of which, on a quantum valebat, is not some-, thing which is speculative, remote or contingent, but is capable of present definite ascertainment under well-settled rules of evidence. So that, in that class of cases, where the circumstances are such that the doctrine of “unjust enrichment” is applicable and because it is ex aequo et bono (i. e., it is equitable and just), so to do, the law implies the promise of the defendant to pay the value to him, on a quantum valebat, of the property which he has accepted, and hence that value is used, in such ease, as the measure of the recovery to which the plaintiff is entitled. Keener on Quasi Contracts, pp. 388 to 410. But where the services involved do not add to the property or wealth of the defendant, but tend merely to save him from loss of property or money which he already has, different principles are involved. And generally, in the class of cases involving only purely personal services, unattended with any actual transferring of tangible property, in the absence of special contract to the contrary, express or implied in fact (as distinguished from one which the law implies), the sole measure of the recovery is the value in itself of the work done, on a quantum meruit.

Accordingly, we find that the settled rule, laid down by the authorities, almost if not quite unanimously, is that the measure of compensation which attorneys at law are entitled to recover for services rendered under an employment which contains no provision fixing a definite compensation, is the reasonable value of the services rendered, not in benefit to the client, but, in themselves, on a quantum meruit; and that the circumstances to be considered in determining the compensation to be recovered are — the amount and character of the services rendered; the responsibility imposed; the labor, time and trouble involved; the character and importance of the matter in which the services are rendered; the amount of the money or the value of the property to be affected; the professional skill and experience called for; the character and standing in their profession of the attorneys; and whether or not the fee is absolute or contingent, it being a recognized rule that an attorney may properly charge a much larger fee where it is to be contingent than where it is not so. The result secured by the services of the attorney may likewise be considered; but merely as bearing upon the consideration of the efficiency with which they were rendered, and, in that way, upon their value on a quantum meruit, not from the standpoint of their value to the client. 9 Cyc. 983, 994; 3 Am. & Eng. Enc. of Law (2nd ed.), pp. 419-423; Bills v. Polk, 4 Lea (72 Tenn.), 494; People v. Supervisors, 45 N. Y. 196; Calvert v. Coxe, 1 Gill (Md.), 95; Christy v. Douglas, Wright (Ohio), 485; Stevens v. Ellsworth, 95 Iowa 231, 63 N. W. 683; Selover v. Bryant, 54 Minn., 434, 56 N. W. 58, 21 L. R. A. 418, 40 Am. St. Rep. 349; Randall v. Packard, 142 N. Y. 47, 36 N. E. 823; Stanton v. Embrey, 93 U. S. 557, 23 L. Ed. 983; Yates v. Robertson, 80 Va. 475; 4 Minor’s Inst. 177.

2. Was the error in the instructions above pointed out harmful, and therefore reversible error?

This question must be answered in the negative.

There was evidence introduced before the jury in behalf of the attorneys upon the correct theory that the measure of recovery was on a quantum meruit, as well as upon the theory of the instructions above considered. There was ample evidence to sustain the verdict upon the correct theory. In view of the character and importance of the matter in which the services in question were rendered; the responsibility imposed upon the attorneys; the professional skill and experience called for, and the character and standing of the attorneys in their profession, as shown by the evidence, it is plain that the compensation fixed by the verdict and judgment under review, of $2,000.00 to both, or $1,000.00 to each of the attorneys, was but a reasonable compensation on a quantum meruit.

Of the compensation to which an attorney is entitled on a quantum meruit this is said in People v. Supervisors, supra (45 N. Y.), at p. 202: “He should be paid what his services, are reasonably worth. Not according to what they produced to his client, but what such services, in themselves considered, were reasonably worth, looking to the labor, time, talent and skill expended in the bestowal of them.” '

As said in Eggleston v. Boardman, supra (37 Mich.), at pp. 17 and 18: “The artist who transfers to the canvas the living likeness, destined perhaps to become immortal as a work of art, is entitled to a vastly higher compensation than he would be for spending the same time in painting buildings. * * The recompense to be paid the sculptor, who conceives, molds and produces his masterpiece of form, cannot be measured and fixed by a standard based alone upon tbe time spent in its production. * * The productions of tbe composer, tbe poet and tbe author, cannot be valued by tbe time apparently spent in tbeir preparation. They are formed of a combination of ideas, wbicb may bave cost tbeir authors years of application to complete.

“Tbe lawyer, who in order to excel in bis profession, has devoted years to preliminary studies and has spent much labor and money to thoroughly fit himself for bis calling, so that be might be able to act as an advocate * * or as a counsellor to guide and direct others — to furnish them from bis vast storehouse of knowledge, ripened and perfected from long experience, with such ideas and suggestions wbicb, when carried out and followed up, would lead to success — bow shall his services be estimated?

“It is very evident that tbe responsibility, tbe care, tbe anxiety and mental labor is much greater in a case where tbe amount in controversy is large, than where it is insignificant. * * * Nor is tbe responsibility, care and mental labor dependent alone upon tbe number of hours or days wbicb may be given to tbe preparation and trial or argument of tbe ease * *.

“We can see no analogy between this kind or class of work and that performed by tbe laborer, nor can tbe creditable fact that attorneys generally, where tbe amount in controversy is small, or tbeir client is poor, charge and receive much less than tbeir services may in fact bave been worth, prevent tbeir recovering reasonable compensation in proportion to tbe magnitude of tbe interests committed to tbeir care. In fact, in all cases, tbe professional skill and standing of tbe person ■ employed, bis experience, tbe nature of tbe controversy, both in regard to tbe amount involved and the character and nature of the questions raised in the case, as well as the result, must all be taken into consideration in fixing the value of the services rendered.”

3. Were instructions 1 and 1-b erroneous in that they permitted a recovery for services rendered under a special contract, measured in amount otherwise than by the provisions of the special contract on that subject?

The question must be answered in the affirmative.

The instruction was plainly contrary to the well-settled law on the subject.

As said by Lord Kenyon, C. J., in Cutter v. Powell, 2 Smith’s Lead. Cases, at p. 1217: “That where the parties have come to an express contract, none can be implied, has prevailed so long as to be reduced to an axiom in the law.” To the same effect see Grice v. Todd, 120 Va. 481, 91 S. E. 609, L. R. A. 1917 B, 512; Norfolk v. Norfolk County, 120 Va. 356, 91 S. E., 820; Burks’ Pl. & Pr. (2nd ed.), pp. 112-114.

This rule, however, is applicable only where there is a special contract in existence which embraces the services in question and which stipulates what the compensation shall be for the services and that contract is open — i. e., unperformed on the part of the person who'seeks to recover upon an implied contract compensation for what he has done. The principle involved is this: If one is in default in the performance of an existing contract obligation, he may not escape that obligation by the expedient of setting up an alleged implied contract which is different in its obligation. Note to Cutter v. Powell, supra, p. 1226, et seq. In the instant case the services in question were not within the contemplation of or embraced in the special contract (i. e., the first contract aforesaid). There was no stipulation in the special contract providing what the compensation for those services should be. And the special contract in fact never became operative beyond the services which were rendered thereunder for the certain fee therein provided for; it was by mutual consent wholly abandoned, and thus rescinded, in so far as its provisions concerned the services to be rendered for the contingent fee therein mentioned; and, hence, it could not be regarded as “open” quoad the attorneys.

But, it is manifest that, while theoretically erroneous, the instruction had no harmful effect upon the verdict. The evidence before the jury clearly established the fact that the services in question were not rendered under the special contract mentioned in the instructions, but under a subsequent and different employment, which however, did not fix the measure of compensation, so that, as aforesaid, that measure was fixed by the contract which the law in such case implied; and, as also in substance above stated, when tested by the application of that standard,, no other proper verdict could have been rendered. The error under consideration, therefore, was not harmful.

4. Were instructions 1, 1-a, and 1-b erroneous, as in conflict with instruction 3, all given by the court?

The question must be answered in the affirmative.

But instruction No. 3 was itself erroneous, in view of the uncontroverted evidence in the case. It ignored and was directly at variance with the evidence, which, as aforesaid, was to the effect that the services in question were not within the contemplation of the parties when the special contract mentioned in the instruction was made, and were not embraced within its terms. Moreover, it was obvious from the language of the special contract itself that such services were not embraced within its terms.

It is earnestly and ably argued in behalf of the county that the services were rendered under the special contract as substituted services, under the subsequent mutual agreement on the part of the county and the attorneys, which left in force and unaffected the provision of the special contract to the effect that nothing was owing from the county thereunder in addition to the certain fee provided for, except upon the happening of the contingency therein stipulated — namely, the making of a report by the committee of the city council recommending exact boundaries of territory to be taken into the city limits. If there had been such a mutual agreement it would, indeed, have amounted to a modification of the special contract merely in the single particular of the character of the services therein provided for, and the attorneys would find themselves thereby neatly placed in the cul-de-sac which the argument for the county provides for them. But, even if that were so, the contract under which the services were rendered would not be the original special contract aforesaid, as is announced in instruction No. 3, but that contract as modified by the mutual agreement; and, as said in 6 R. C. L., section 298, pp. 914-5; “In such case the contract must be proved partly by the written and partly by the subsequent oral contract which has thus been incorporated into and made part of the original contract.” However, as the prime object of the new services was to put an end to all further action on the part of the city in the annexation proceeding, which would have had the precise effect of preventing the happening of the contingency aforesaid, the idea that the attorneys consented to the modification of the original contract, merely in the single particular aforesaid, seems to be negatived by the very character of the new services and of the undertaking to render them. And all the evidence on the subject makes it plain, indeed, as aforesaid, that the original special contract never became further operative than as concerned the certain fee and the services to be rendered for that fee; that it was by mutual consent of the county and the attorneys wholly abandoned and considered as discharged by the services rendered thereunder for the certain fee, and' by the payment by the county of such fee; so that, as also above stated, such special contract did not in fact remain open, i. e., unperformed on the part of the attorneys. 6 R. C. L., section 298, pp. 914-5; Elliott on Contracts, sections 1856, 1857, 1858, 1859, 1865.

It follows from what has been said that the erroneous conflict in the instructions under consideration was error, but harmless error.

5. Is the requirement of section 2759 of the Code, with respect to such an account as that involved in this case (namely, that the time actually and necessarily devoted to the performance of the services shall be verified by affidavit filed with the account), jurisdictional, so that the circuit court, on the trial of the appeal, had no authority to enter the judgment under review, in the absence of the filing of such specific affidavit with the account?

The question must be answered in the negative.

Under the provisions of section 2763 of the Code, the trial in the circuit court, on the appeal from the action of the board of supervisors, was practically de novo. On that trial, the pleadings and evidence permitted by the statute, and which appear from the record, were sufficient to support the judgment.

This disposes of the assignments of error based on the refusal of the court to give instructions A and B asked for by the county.

6. Did the court err in refusing to give instruction E asked for by the county?

The question must be answered in the negative.

The point urged in argument for the county in support of this instruction is that the original special contract provided that the contingent fee was to be paid out of the county and district levies. That these levies were appropriated by the Constitution and statute laws on the subject to other purposes, so that to use them for the payment of such contingent fee would be a misappropriation of such funds and therefore illegal.

The answer to this is, in the first place,, that the reference in the original contract to the levies in question was merely as a measure of the amount of the contingent compensation provided by the contract for the contingent services which might be rendered thereunder. The payment was to be made, not out of the district, but out of the general county levy. Section 2728 of the Code authorized the board of supervisors to make the original special contract; and,, hence, to make the account for such services chargeable against the county; so that under other sections of the Code the allowance and payment of the account for the services would not have been illegal, but lawful.

Secondly: As aforesaid, the evidence plainly shows that the services in question were not rendered under the original contract, and that the provision therein with reference to the taxes had no reference to the compensation for those services.

7. Was the action of the court erroneous in giving instruction 1-a and in refusing instruction F asked for by the county, in that the court thus, in substance, instructed the jury that they could imply a contract of employment of the attorneys on the part of the county without corporate action of the board of supervisors on the subject, evidenced by resolution adopted by such board?

The question must be answered in the affirmative.

The statute (section 2728 of the Code) under which such an employment is alone authorized so as to render the county chargeable for the services in question, requires the employment to be made by the board of supervisors; and the board can act in such a case, so as to obligate the county, only at authorized meetings duly held, and- as a corporate body, by resolution duly adopted; and not by the action of its members separately and individually. Lynchburg v. Amherst County, 115 Va. 600, 80 S. E. 117; Manly v. Broaddus, 94 Va. at p. 552, 27 S. E. 438; 2 Dillon on Mun. Corp. (5th ed.), sections 501, 793, 794, 795; 1 Meehem on Agency, section 763. There are cases which constitute exceptions to the general rule requiring the corporate action above mentioned, in order to bind the municipality or county; but, in view of the fact that there was such corporate action in the instant case constituting evidence of the fact of the employment under which the services were rendered', it is unnecessary for us to here distinguish the exceptional eases.

By the resolution of the board of supervisors adopted on May 3, 1920, the fact that the attorneys acted as “counsel for (the) county (in) * * * having an act passed by the General Assembly of Virginia” (the “Hicks’ Bill”), was evidenced. This resolution plainly recognized that the services touching this act were rendered by the attorneys as counsel for the county; that the employment of the attorneys by the county existed in such matter, which employment as we have seen was a wholly different employment from and one not embraced in the aforesaid first contract. That was a ratification, by corporate action of the board, of the preceding unauthorized action of the Commonwealth’s attorney and individual members of the board, under which employment the services in question were rendered by the attorneys, Lee and Howard, and was an acceptance of the services as having been rendered for the county, under such employment. This as effectually bound the county by the obligation of the employment of the attorneys as if such employment had been evidenced by resolution of the board adopted before the services were rendered. 2 Dillon on Mun. Corp. (5th ed.), sections 797, 798, 799, and authorities cited in the notes; 11 Cyc. 478; 15 C. J. section 250, p. 554.

Therefore the action of the court under consideration, though erroneous, was harmless error.

8. It is urged on the part of the county that the resolution of May 3, 1920, contains qualifying language which evidences that the employment just referred to was under the original special contract aforesaid. Concerning that position this will be observed.

The qualifying language referred to, contained in the resolution just mentioned, is used in connection with the allowance of the account for the expenses mentioned, and states that “said account is ordered to be paid, with the understanding that the amount shall be deducted from the fee of said attorneys for defending the aforesaid suit.” Upon its face it has no reference to the terms of the employment under which the services were rendered in connection with the “Hicks Bill,” i. e., to any “understanding” with which those services were rendered existing at the time of the service. It is a subsequent “understanding” which, manifestly, the board seeks to attach to the acceptance by the attorneys of the money to be thereafter paid under the resolution, and has to do with the fee on which the expenses were to be credited, prima facie the certain fee provided for in the original contract, and not the unfixed compensation for the services rendered in having the “Hicks Bill” passed. It would be a most strained construction to give this language the meaning that the latter services were rendered with the understanding mentioned; and certainly, in view of the fact that neither.of the attorneys, Lee or Howard, were present or knew of the contents of the resolution when it was adopted, such ex parte statement on the part of the county cannot be given the construction, that it evidences whatjwas the mutual understanding of the attorneys, as well as of the county, under which these services were rendered.

9. Did the court err in refusing Instruction G asked for by the county?

This question must be answered in the negative.

As we have seen above, the benefit to the county was not the proper measure of recovery in such a case as this. Hence, Instruction G on that subject was not a proper instruction.

10. Were' the services of the attorneys in connection with the passage of the “Hicks Bill” lobbying services which were illegal under section 4499 of the Code, so that the law will not imply a promise to pay therefor?

The question must be answered in the negative.

As held in Yates v. Robertson, supra (80 Va. 475), this statute “aims at the offense of paying money, or other compensation, to secure the passage or defeat of any measure, and was doubtless intended to apply to the use of the money in buying votes, etc.; and not to contracts with attorneys for purely professional services, such as drafting petitions, writing forth client’s claim, taking testimony, collecting facts, preparing arguments, oral or written, addresses to the legislature or its committees, with the. intention to reach its reason by argument. Hence, contracts for the latter purpose are valid.”

The only evidence of the services of the attorneys appearing from the record, which it is claimed by the county would have rendered a contract therefor illegal, is the following:

That one of the attorneys interviewed, outside of the committee room, individual members of the legislature, and especially members of the committees which would have to consider and report upon the “Hicks Bill,” merely for the purpose of having them understand the merits of the bill and to reach their reason by argument.

We are of opinion that there was nothing illegal or improper in the conduct mentioned. The same principle which permits the presentation of desired legislation and its alleged merits to the legislature as a body, or to its committees, purely with the intention of reaching their reason by argument, is applicable to the like presentation to the individual members of the legislature. Hence, contracts with attorneys for services rendered to that end are not illegal.

The authorities very generally hold that a contract to pay for services to be performed in the endeavor to obtain or defeat legislation by other means than the use of argument addressed to the reason of the legislators, such as, for example, for the exertion of personal or political influence apart from the appeal to reason as applied to the consideration of the merits or demerits of the legislation in question, is an illegal contract. Trist v. Child, 21 Wall. 441, 22 L. Ed. 623; Earle v. Myers, 207 U. S. 244, 28 Sup. Ct. 86, 52 L. Ed. 191; Houlton v. Nichol, 93 Wis. 393, 67 N. W. 715, 33 L. R. A. 166, 57 Am. St. Rep. 928; note L. R. A. 1917 B, 368, et seq.; Stroemer v. Van Orsdel, 74 Neb. 132, 103 N. W. 1053, 107 N. W. 125, 121 Am. St. Rep. 728; note in 66 Am. St. Rep. 506-7. As, however, as aforesaid, the contract in the ease in judgment was merely for services consisting of the presentation of argument addressed to the reason of the legislators, the present case does not fall within such holding.

There are cases which hold that contracts of an attorney for lobbying services of any character whatsoever are illegal — 2 R. C. L., p. 1041. But by the great weight of authority the distinction referred to in the paragraph next above is recognized, and such contracts as embrace merely services which appeal to the reason are held to be valid.

There are also cases which hold that without legislative authority municipalities and counties may not use the public funds to pay for lobbying services of any character. Richardson v. Scotts Bluff County, 59 Neb. 400, 81 N. W. 309, 48 L. R. A. 294, 80 Am. St. Rep. 689; note L. R. A. 1917 B, 358, et seq., and authorities cited on this subject. See, however, for the holding per contra, where the contract is for lobbying services consisting of argument addressed only to the reason of the members of the legislative body sought to be influenced, note L. R. A. 1917B, 359, et seq., and authorities cited on this subject. But since we have in Virginia the statute aforesaid (section 1728 of the Code), which, so far as material, provides that the board of supervisors “shall have power * * * to employ counsel * * * in any matter affecting county property where the board is of opinion that such counsel is needed” (a provision which is so broad that it undoubtedly confers upon the board of supervisors the authority to contract for the employment in question in the ease in judgment), it is unnecessary for us to enter further upon the consideration of the question of whether the contract of employment on the part of the county would have been illegal but for the Virginia statute just cited, or to deal with the authorities on that subject more in detail than is done above.

We come now to the sole question which remains for our decision, and that is this:

11. Does the evidence on the subject show that the acceptance by the attorneys, respectively, of the payment of the $1,000.00 to each of them, was in execution of an accord and satisfaction which barred the demands of the attorneys involved in this case?

The question must be answered in the negative.

The circumstances relied on by the county to have the effect in question upon the demand of Mr. Lee are the following: That he accepted payment of the warrant for the expenses, issued to him in May, 1920, under the resolution of the board of supervisors of May 3, 1920, containing the stipulation to the effect that it was issued “with the understanding that the amount thereof shall be deducted from the fee of said attorneys for defending the aforesaid suit;”' and that the warrant for the $1,000.00 paid him was issued to him in acceptance on the part of the county of his own proposition to the board,' made at their October, 18, 1920, meeting, to-wit, “if you will give me my thousand dollars I will get out of it and won’t have anything more to do with you?”

But neither at common law nor under the statute in Virginia on the subject of an accord and satisfaction (section 5765 of the Code), was the ex parte stipulation in the warrant for the expenses evidence of any agreement on the part of Mr. Lee to that effect. He was not present at this board meeting; never agreed to the stipulation; promptly repudiated its binding force upon him as soon as he received the warrant, and at once gave constructive notice thereof to the county, which was equivalent to actual notice, before he presented the warrant for payment; and under those circumstances the county paid this warrant. It is true that it has been held, under certain circumstances, as is said in 1 C. J. 562, as follows: “When a claim is disputed * * * and the tender of a cheek or draft in settlement is of such character as to give the creditor notice that it must be accepted in full satisfaction of the claim or not at all, the retention and use thereof by the creditor constitutes an accord and satisfaction. And it is immaterial that the creditor * * * protests that he does not accept the tender in full satisfaction of the claim. If he is not willing to accept the check in full payment, it is his duty to return it.” But this also is said in the same valuable work (1 C. J.) at p. 560: “Although the debtor has made his tender conditional on acceptance in full satisfaction of a larger disputed claim, he may nevertheless waive the condition and consent to the creditor receiving it on his own terms, and, when he does so, acceptance of the amount tendered does not operate as a satisfaction of the claim.” The county, by the payment of the warrant after notice of the terms on which Mr. Lee proposed to collect it, waived the condition contained in the stipulation aforesaid. The expense warrant incident," therefore, did not constitute an accord and satisfaction, or even an accord.

What occurred between Mr. Lee and the board at its October 18th meeting was an accord, under the statute on the subject, although it would not have been so at common law. But the execution of an accord, while it is in existence, is as much necessary to constitute an accord and satisfaction as the accord itself. This accord consisted in Mr. Lee’s agreement to accept, not the warrant (merely a promise to pay), in satisfaction of all demands, but the money, the actual payment. (1 R. C. L., pp. 199-200.) Before the money was paid, and even before the warrant was issued, Mr. Lee withdrew his proposition to accept the $1,000 in full satisfaction, as having been made upon a misconception on his part of the reason for the conduct of the board, at which he felt incensed at the time the proposition was made, and gave express notice to the board of such withdrawal at its November 15, 1920, meeting, when he, along with Mr. Howard, asked the board to reconsider its action at the October 18th meeting, and grant a rehearing of the matter, which, as aforesaid, the board did at the November 15th meeting. Since there was never any claim on the part of the county that it did not owe the whole $1,000 to Mr. Lee for services rendered under the original contract, which did not embrace the services in question, his agreement to accept the $1,000 in full satisfaction of all of his demands was nudum pactum, so that he had the perfect right to withdraw his agreement at the time he did. When the board thereafter acted as it did, by the resolution of November 15th, its action was not in execution of any accord with Mr. Lee, because that accord had been withdrawn, as aforesaid. Similarly, when, after the appeal had been taken from the last-named action of the board, of which the county had notice at the time as the statute on that subject requires, the county paid the $1,000.00 warrant to Mr. Lee, it was not in execution of any accord with him, either under the statute, section 5765 aforesaid, or at common law, because no such accord was then in existence; and this the county well knew at the time it made such payment.

The circumstances relied on by the county as having the effect of an accord and satisfaction which barred the demand of Mr. Howard consist merely of his acceptance of the payment of the $1,000.00 warrant issued to him after the appeal aforesaid had been taken as aforesaid. There was no evidence before the jury that such payment was made in pursuance, either of any express agreement on the part of Mr. Howard, that it would be received in full satisfaction of his demand which is in question, so as to bring the case within the statute (section 5765), or of an implied agreement to that effect, which would leave the case stand as at common law. And, under the principle above adverted to, the county, by the payment of the warrant to Mr. Howard for the $1,000.00 after notice of the terms on which he would alone accept it, waived the aforesaid condition contained in the warrant itself. 1 C. J. 460. Hence, neither under the statute nor at common law was there any accord and satisfaction which barred the claim of Mr. Howard.

Upon the whole case, after careful consideration thereof, we are of opinion, notwithstanding the errors above noted committed on the trial that “it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been done.” Hence, under the statute (section 6331 of the Code), the ease will be affirmed.

Affirmed.

Prentis, J., dissenting.