48 Ind. App. 596 | Ind. Ct. App. | 1911
Action by appellant on two promissory notes, of the aggregate amount of $500, executed by appellee. Answer in three paragraphs. The first was a general denial, the second, a plea of payment, and the third set up the discharge of appellee in bankruptcy, and that appellant filed the notes as claims and received his distributive share of the proceeds of the bankrupt estate, amounting to $20.50. A reply admits the truth of the third paragraph of answer, and alleges that the debt was revived by a new promise after discharge in bankruptcy. Trial by jury resulted in a judgment for appellee.
The general rule is that the defense of accord and satisfaction, to be admissible, must be specially pleaded, and that evidence showing such is not admissible under a plea of payment. But in this case, appellant allowed the evidence that he claims shows accord and satisfaction to go in without objection of any kind. By the weight of authority, any failure of defendant to plead accord and satisfaction specially is waived by plaintiff’s failure to object to the evidence of it on that ground. 1 Cyc. 341, and cases cited; Berdell v. Bissell (1882), 6 Colo. 162; Freiermuth v. McKee (1900), 86 Mo. App. 64.
No error appearing in the action of the trial court, the judgment is affirmed.