A. Ray Curtis Co. v. Barnes

HENRIOD, Chief Justice: Appeal from a summary judgment of no cause of action in a case where Barries had assured payment for obligations of a corporation. Trouble came financially to the corporation accompanied with a headache to the obligee, and dyspepsia to the defendant surety, who, to relieve his ailment, wrote and executed and delivered to the plaintiff after negotiations, a check that was accepted and run through the bank, — upon which was written specifically, unequivocally and without reservation: “Endorsement of this check constitutes payment in full.” At that point the suretyship expired and should be interred. The appellant now says the check it received, endorsed and cashed and used, and upon which presumably it is now drawing interest, — was nadum pactum, and that the maker somehow is still the payor for any balance the appellant might urge would be due, — but for the fortuitous part payment. This was not an accord and satisfaction situation, involving a disputed amount, but one where the plaintiff pressured defendant; agreed to settle for a lesser amount; received a check from defendant, read the endorsement, but did not notify defendant of any unacceptability, and cashed it. Justice would seem meaningless to arrive at a ridiculous conclusion other than to affirm the trial court, — which we do. ELLETT and TUCKETT and MAUGHAN, JJ., concur.