Storch v. Dewey

57 Kan. 370 | Kan. | 1896

Allen, J.

Numerous errors are assigned on the record, but the view we take of the case renders it unnecessary to discuss them in detail. Counsel for the plaintiff in error strenuously insist that there could not be á bona fide contest as to the amount dale bn the notes. That there was a dispute between himself and the maker of the notes concerning the date from which' interest should be computed, at the time the first payment was made, is conceded; but his contention is that the claim made by the defendant was not urged in good faith, and was utterly without foundation. There is no dispute as to the fact that the patent for the lands in Riley County was not filed until December 26, 1890. By their terms the notes are promises to pay in one year, with interest from maturity at the rate of 10 per cent., followed by the restriction that the notes are to be paid only when patents for the lands described in the mortgage appear on record in the county where situated. It does not seem to be seriously contended that the defendant was bound to pay the notes until the patents were recorded; but it is insisted that interest commenced to run at the expiration of a year from the date of the notes. There was ample room for an honest disagreement as to the proper construction of the notes. Indeed, we are not prepared to say that the plaintiff’s construction of the instrument itself is the correct one. But whether it is or not we do not decide, for it is sufficient to defeat his claim that there was in fact a bona fide dispute between the parties; that an agreement was finally reached as to the amount to be paid in full satisfaction of the plaintiff’s claim, and payment made accordingly. That this was the case appears to us clearly from the plaintiff’s own evidence, and from the written receipts endorsed on both notes and mortgages. It is alleged in the petition that the payments were made, and that the securities were delivered to the defendant. It is true that, under the authorities cited on behalf of the plaintiff in error, a receipt purporting to be in full of the plaintiff’s demand may be contradicted by oral testimony showing either that the payment was not in fact made or that the amount was inadequate to discharge, the debt; but this is not such a case. There is no dispute with reference to the amount actually paid. Nor was there any misunderstanding by either party as to the terms of the notes. The only dispute was as to the legal construction of the notes and the extent of the defendant’s liability. The rule that the payment of a less sum than that actually due is not a valid accord and satisfaction, only applies when the claim settled is liquidated and undisputed; and where the debtor offers to pay the principal of a note, and in good faith denies his liability to pay interest, if the creditor accepts the offer and surrenders the note it is an accord and satisfaction, and he cannot thereafter maintain an action to recover the interest. Tuttle v. Tuttle, 12 Metc. 551; McGlynn v. Billings, 16 Vt. 329; McDaniels v. Lapham, 21 id. 222; Palmerton v. Huxford, 4 Denio, 166; 1 Am. & Eng. Encyc. Law (2d ed.), 415. It being clear that the plaintiff cannot recover under the conceded facts of the case, the technical questions arising on the pleadings and the introduction of testimony are without substance, even though it should appear that in some particulars the rulings of the Court were erroneous.

The judgment is affirmed.

All the Justices concurring.