Worden v. Houston

SMITH, P. J. This is an action which was brought on a promissory note. The answer pleaded as a defense, accord and satisfaction. There was trial to the court without the intervention of a jury. At the conclusion of all the evidence the court made a special finding of facts supplemented with its conclusions of law, as follows: “That the note sued upon was made by the defendant to E. M. Sleek, in renewal of a former note for three hundred and ninety-three dollars, and the accrued interest thereon; that the defendant claimed that the whole or part of said note was illegal and void for the reason that it was given for unlawful and usurious interest; that after the maturity thereof witness George W. Day became the owner and holder thereof by purchase from said Sleek with the knowledge that the defendant disputed the validity and legality thereof in whole or in part; that witness Day also became the owner and holder of the notes referred to in the testimony as the Cash notes; that witness Day collected various install374 menta on both notes until on or about tbe first of November, 1899, and that during said time defendant-Houston bad protested and contended tbat be did not owe all tbe notes sued upon, and tbat,tbe same was illegal and void in whole or in part because given as contended by him, for usurious interest; tbat prior to November 1, 1899, tbe said Day, and tbe defendant bad a tall?: about a settlement in full discharge and satisfaction of all of said notes, including the one sued upon, and tbat on November 1, 1899, tbe said Day being then and there tbe owner and holder of tbe note sued upon, and also of the Cash notes met tbe defendant and together they computed tbe total amount together with interest then due on said notes according to tbe face thereof, and tbat tbe said amount ■was eight hundred and three dollars and ninety-five cents: tbat thereupon tbe defendant by way of accord and satisfaction and for tbe purpose of fully paying and satisfying all of said notes, (1) offered to tbe said Day tbe sum of six hundred dollars in cash, which offer was then and there by tbe said Day refused; (2) tbat thereupon tbe said Day offered to tbe defendant, by way of accord and satisfaction, in full payment and satisfaction of all of said notes, to accept the sum of seven hundred and three dollars and ninety-five cents, which offer was refused by tbe defendant; (3)that thereupon the defendant offered to make the said Day a, cash payment, five hundred and seventy-eight- dollars and sixty cents and the promise to pay the further sum of one hundred and twenty-six dollar's in thirty days; that thereupon the defendant paid to the said Day the sum of five hundred and seventy-eight dollars and sixty cents and promised to pay him- the further sum of one hundred and twenty-six dollars in. fifteen days.” Tbe court thereupon declared as a matter of law tbat under tbe pleadings and evidence its “finding and judgment must be for tbe plaintiff.” After an unsuccessful motion for a new trial, judgment was given for plaintiff and defendant appealed. [375] we do not think tbe conclusion of law deduced by the court from its findings of facts can be sustained. It is seen from the words thereof, which we have italicised, that the defendant, by way of accord and satisfaction, made the said Day a cash payment of $5,78.60 and the promise to pay the further sum of $126 in thirty days, and that thereupon the defendant paid the said Day the larger sum and promised to pay the less. It is clear that if the defendant, by way of accord and satisfaction, offered to make said cash payment and' a promise to pay a further sum at a certain time, and he immediately thereafter did male© such payment and promise as the court found the fact to be, then this amounted to an acceptance, or was sufficient to justify the inference of that fact. To the suggestion that the special finding of facts does not show the court found that the defendant’s offer just referred to was made “by way of accord and satisfaction” it may be answered that while it is not in express terms so stated, it is clearly implied from the context. The collocation of words used by the court in the statement of that part of its finding which we have italicised, read in connection with those immediately preceding them, when fairly interpreted, can be held to have no meaning other than that the court found that the defendant, by way of accord and satisfaction, made an offer of $578.60 to Mr. Day in cash and a parol promise to pay the farther sum of $126 within a specified time, and that this offer in its entirety was accepted. Erom this finding of facts, the conclusion of law declared by the court was most manifestly erroneous. Upon the facts so found, there could be no recovery in the cause of action stated in the petition. That obligation had been superseded by another but upon which the action was not founded. The judgment will accordingly be reversed. All concur.