108 Ark. 241 | Ark. | 1913
(after stating the facts). It is contended that the court erred in. admitting the testimony relative to the accord and satisfaction under the general plea of payment of the note and that it should have granted the continuance upon the ground of surprise.
A plea of accord and satisfaction, like one of pay'ment, sets up an affirmative defense and it is one that is required to be specifically pleaded. 1 Cyc. 371; 1 Enc. Plead. & Prac. 74. Hunt on Accord and Satisfaction, ■§ 106. Owens v. Chandler, 16 Ark. 651.
It is the purpose of the pleadings to advise the parties of the facts that will be relied upon in the suit for a recovery or defense, that they may with proper proof meet the issues made. Under a plea of payment it can, of course, be shown that the debt or obligation was discharged in the usual manner, by the delivery of money in satisfaction or by the delivery of property of any kind in lieu of money, agreed to be accepted in discharge thereof. Payment may be made in anything that the creditor will receive in payment. Bush v. Sproat, 43 Ark. 416. Appellant claims that the variance between the allegations of the plea of payment and the proof relating to the manner of the satisfaction of the claim of the husband of appellee by an agreement on the part of the agent of the payee that it might be credited upon his wife’s note misled him to his prejudice as he was not required to expect that any such defense would be relied upon thereunder, nor given any information thereof that would enable him to prepare to meet it. We agree with this contention. He objected to the introduction of said testimony under said plea at the time and after the testimony was introduced alleged he was surprised on account of it, moved the court to withdraw the submission of the case and grant him a continuance in order that he might have time to meet the new issue injected into the case.
The affidavits in support of the motion for a new trial show that both the payee of the note and her agent, by whom it was claimed the credit was agreed to be allowed, deny any such agreement or statement, or any authority to allow the credit and it is evident that appellant was deprived of material testimony that he could and doubtless would have been able to produce upon the trial if he had been advised of the nature of the defense by the pleadings, and not being so advised was surprised upon its introduction. The payee of the note was not a party to the suit, did not live within the jurisdiction of the court, her deposition was properly taken and, of course, she was not required to attend the trial in person and appellant can not be regarded at fault in not having her present. The testimony of appellee and her husband, relating to the allowance of a credit upon the note by the manager of the payee was objected to and the objection not having been sustained appellant was left without any testimony in relation thereto, much to his prejudice. The court should have granted his motion for a continuance under the circumstances.
The court is of the opinion that the testimony is insufficient to show that the manager of Mrs. Carleton’s to whom the husband of appellee was sent for an adjustment of the amount .due him from her, agreed that he should have credit upon the note of his wife due Mrs. Carleton, the testimony tending only to show that he had no money with which to pay the claim and suggested. that the debtor see Mrs. Carleton and get credit upon the note of his wife, indicating, at most, that it was the intention that the matter should not be closed up until she was consulted about it.
For the errors indicated, the judgment is reversed and the cause remanded for a new trial.
