Reese v. Hood

Simmons, C. J. 1. Where one executed and delivered to another several promissory notes, and after a number of partial payments had been made and credited upon the same the notes were lost, and thereupon the debtor paid to the creditor $329, and the parties entered into a written agreement reciting that the creditor claimed that there was still due upon the notes $500, while the debtor claimed that only $187 remained due thereon, and stipulating that if the notes were found and showed a greater sum than $329 to be due thereon, the debtor was to pay the difference between the latter amount and $500, but if they showed a lesser sum to be due upon them than $329, the creditor was to refund the excess: Held, that this was not an accord and satisfaction of the original notes, the same 'having been afterwards found, and it appearing that even after allowing the debtor credit for the $329, a considerable balance was still due upon one of the notes. ¡2. It having been shown by parol evidence, which was admitted without objection, that* the real meaning of the contract was that the payment of $329 was to be a full settlement of the notes [133] if never found, but that if found “they were to speak for themselves and the amount due thereon was to be paid, if any was due,” and that the figures “$500” were inserted at the place last above indicated merely as the creditor’s estimate of the amount supposed to be due on the note before receiving the $329, the latter, in an action upon one of the notes which was still unpaid, could recover the balance actually due thereon, and was not limited to a recovery of $171, the difference between $329 and $500. June 1, 1896. By two Justices. Argued, at the last term. Complaint 'an note. Before Judge Butt. Muscogee superior court. November term, 1894. J. L. Willis, for plaintiff in error. E. G. Cmieron and W. E. McOrory, contra. 3. The evidence warranted the verdict and there was no error of law. Judgment affirmed.