| Ark. | May 7, 1917
(after stating the facts . The court erred in taking the case from the jury. The burden of proof was upon the appellant to sustain his plea of payment, and this he did by testimony which tended to show an accord and satisfaction. The testimony tended to show that appellant agreed to turn the crops and the place which he had rented from C. C. Aylor bach to him on or about October 1, 1914, in consieration for the note in suit, and that he executed his part of the agreement.
Appellee relies upon Cavaness v. Ross, 33 Ark. 572" date_filed="1878-11-15" court="Ark." case_name="Cavaness v. Ross">33 Ark. 572, where we quoted from Ohitty on Contracts, as follows : ‘ ‘ The payment of part .of a liquidated and ascertained sum is, in law, no satisfaction of the whole; although it may, in certain circumstances, be evidence of a gift of the remainder. And a plea.which alleged the payment by the defendant, and receipt by the plaintiff, of a smaller sum in satisfaction of a larger, would be bad even after verdict.”
But the above doctrine is not applicable to the facts of the present record, because here the testimony tended to prove, and it was an issue for the jury, as to whether or not the agreement entered into between the payee and the maker of the note did not constitute an accord and satisfaction. The agreement was entered into about October 1st. The note was not due until November 15th, and the testimony tended to prove that the note was given for the rent of the Aylor place for the year 1914. The testimony therefore tended to show that the appellant turned over his crops to Aylor and surrendered the place before maturity of the note and before the time when he was required to surrender possession of the premises. And while there is no affirmative testimony that the crops thus surrendered were equal to or more than the value of the note, yet there was no evidence to the contrary, and the testimony tended to show that there was an additional consideration besides these crops in the way of the surrender of the possession of the premises on the part of the appellant before the expiration of his lease. This, in connection with the other fact that the crop was surrendered to Aylor before the time'when the note was due, tended to show a sufficient consideration for an accord and satisfaction, and.the court erred, therefore, in taking the case from the jury.
Even if the value of the surrendered crops was not sufficient to liquidate the note, still there was testimony tending to prove, as an additional consideration, the agreement on appellant’s part to also surrender the possession of the premises, which he did.
In the case of Cavaness v. Ross, supra, relied upon by the appellee, we also said: “In cases of contract for the payment of a liquidated sum of money, the payment of a less sum will not be a good satisfaction, unless . it was either paid and accepted before the time when it was to have been paid, or at a different place from that appointed for the payment.” Here the payment was made and accepted, as the proof tended to, show, before the time it was due.
In the case of Feldman v. Fox, 112 Ark. 223" date_filed="1914-03-09" court="Ark." case_name="Feldman v. Fox">112 Ark. 223, 226, we said: “If no benefit is received by the obligee except what he was entitled to under the original contract, and the other party to the contract parts with nothing except what he was already bound for, there is no consideration for the additional contract concerning the subject-matter of the original one.” Again, “Now, the parties to a contract may, by new agreement, change the terms thereof, and the mutual undertakings will support the new contract.”
Here C. C. Aylor had no title to the crops grown by the appellant on the Aylor place. As the landlord, he only had a lien upon such crops for his rent. Therefore, when appellant agreed to surrender the crops he did something that he was not required to do under his contract to pay a stipulated sum for rent, and the testimony was sufficient to warrant a finding that the parties had entered into a new contract by which the rent note was to be satisfied as per the terms of the new agreement. See, also, Horton v. Thompson, 124 Ark. 545, as to the sufficiency of the consideration.
For the error in giving the instruction the judgment is reversed and the cause will be remanded for a new trial.