104 So. 92 | Miss. | 1925
The declaration contains two counts. The first count is to recover three hundred six dollars and thirty-six cents as commissions on seed purchased by Enochs for the Cotton Oil Company and shipped to it. There are many items on this account which ran from September 26, 1923, to October 11, 1923.
The second count of the declaration is to recover one thousand seven hundred fifty-seven dollars and sixty-three cents claimed to be due by the Cotton Oil Company to Enochs on account of loss sustained by Enochs in the *242 sale of different lots of cotton seed that he had purchased for the Cotton Oil Company and which it refused to accept as it had agreed to do, necessitating the sale of the seed at a less price than that agreed to be paid by the Cotton Oil Company to Enochs. There are several items in this claim which total the amount sued for in this count.
Upon the conclusion of the testimony for the plaintiff below the court sustained the motion to exclude and for a peremptory instruction for the defendant, from which action this appeal is taken.
The question for our decision is whether or not the court erred in granting the peremptory instruction for the defendant upon the ground that the appellant was estopped from recovery on both counts because of payment, or accord and satisfaction; the lower court putting its decision upon that sole ground.
The record discloses that, after the dealings between appellant and appellee had ended, the appellant desired a settlement with appellee, and on March 26, 1924, wrote the following letter to appellee:
"Monroe, La., March 26, 1924.
"Mr. W.B. Gowdey, Gowdey, Miss. — Dear Sir: Last week I wrote you to mail me a statement of my account with your mill, and so far no statement. This second request I would thank you to let me have this at your earliest convenience.
"Yours very truly,
T.A. ENOCHS."
In answer to this letter the appellee, Cotton Oil Company, on April 17, 1924, wrote Mr. Enochs the following letter.
"April 17, 1924.
"Mr. T.A. Enochs, Monroe, La. — Dear Sir: We inclose herein statement of your account and our check for one hundred eighty-four dollars and eighty-eight cents in payment of same.
"If there are any more seed for sale in your territory from nonquarantined territory, we would be glad if you would put them up to us. *243
"We will be in operation three or four weeks longer.
"Yours very truly,
"DELTA COTTON OIL CO., "Per ____, MANAGER."
The appellant received the check of one hundred eighty four dollars and eighty-eight cents sent him in the letter; accepted and cashed it. The check so sent and accepted is in the following form, to-wit:
"No. 1224. Gowdy, Miss., April 17, 1924.
"Pay to the order of T.A. Enochs one hundred eighty-four and 88/100 dollars ($188.88).
"DELTA COTTON OIL Co., By H.L. MATTHEWS, Cashier.
"Countersigned: W.B. Gowdy, Manager." Indorsement:
"To balance account, $184.88. "Make all indorsements below.
"This check is hereby accepted by payee in full payment of the within account.
T.A. ENOCHS."
The account inclosed in the letter with the check for one hundred eighty-four dollars and eighty-eight cents is a lengthy itemized statement of the account between the parties from September 26, 1923, to October 11, 1923, for commissions on seed purchased and delivered to appellee and purports to be a full statement of the account between the parties as to these commissions and shows a balance of one hundred eighty-four dollars and eighty-eight cents due by appellee to appellant.
It will be observed from the above that Mr. Enochs, the appellant, requested a statement of his account from the appellee, Cotton Oil Company, and it complied with his request by furnishing him an itemized statement of the account, which showed a balance due by appellee to appellant of one hundred eighty-four dollars and eighty-eight cents. The letter inclosing the statement of account also informed Mr. Enochs that a check was inclosed `for one hundred eighty-four dollars and eighty-eight cents *244 in payment of same." Mr. Enochs accepted the check, which was indorsed:
"To balance account, one hundred eighty-four dollars and eighty-eight cents. This check is hereby accepted by payee in full payment of the within account.
"[Signed] T.A. ENOCHS."
We think the acceptance of the check by the appellant was a full settlement of the account between the parties for commissions on shipments of seed, as sued for in the first count of the declaration. It is clear to us the appellee, Cotton Oil Company, tendered the check in full settlement of the account inclosed in the letter with it, and the appellant, Enochs, accepted the check knowing that it was tendered in full settlement of that account, and he cannot now be heard to say that he accepted it as part payment of the claim against the appellee for these commissions.
The appellant points out that there was no plea of accord and satisfaction filed in the case, and that therefore accord and satisfaction cannot be urged to defeat recovery. There was a plea of "payment in full," and we find no objection to the introduction of the testimony going to show the check for one hundred eighty-four dollars and eighty-eight cents was tendered by appellee to appellant in full settlement of the stated account between them. Therefore we think the acceptance of the check for one hundred eighty-four dollars and eighty-eight cents by the appellant, Enochs, was a full settlement of the account sued for in the first count of the declaration and which was the stated account inclosed in the letter with the check sent by the Cotton Oil Company to appellant, Enochs, and bars recovery on that count.
But it is our opinion the court erred in directing a verdict for the defendant on the second count of the declaration, because the amount claimed in that count was for dealings and transactions different from the items of the first count in the declaration, was not sued for in the first count, and was not stated or included in the statement of account sent by the Cotton Oil Company to appellant *245 in the letter with the check for one hundred eighty-four dollars and eighty-eight cents, which appellant accepted "in payment of same," and as written on the check, "This check is hereby accepted by payee in full payment of the within account."
The check for one hundred eighty-four dollars and eighty-eight cents was sent and accepted to cover payment only of the stated account inclosed with it; it was not tendered and accepted in settlement of the amounts claimed in the second count of the declaration. The Cotton Oil Company did not then know of these latter claims; did not have them in mind when it tendered the check for one hundred eighty-four dollars and eighty-eight cents to cover the claims mentioned in the first count of the declaration. So when the check was accepted by Enochs it was not intended by him, nor by the Cotton Oil Company, that it should be received in settlement of any claim or account except the stated account inclosed with it in the letter, which inclosed account is practically the same one set up in the first count of the declaration in this case.
Accepting the check for one hundred eighty-four dollars and eighty-eight cents to cover the account inclosed with it did not estop appellant, Enochs, from recovering on the claims mentioned in the second count of the declaration, because the claims are different and were not in the minds of the parties at the time. Appellee was not misled to its disadvantage. For the same reasons there was no accord and satisfaction or payment of the claim set up in the second count of the declaration.
We think the action of the court in directing a verdict against the first count of the declaration was proper, and is affirmed, but it was error to grant the peremptory instruction on the second count, and as to the last count the judgment of the lower court is reversed and the case remanded.
Affirmed in part and reversed and remanded in part. *246
