Frick v. Algeier , 87 Ind. 255 ( 1882 )

Black, C.

This was an action, commenced before a justice of the peace, for money had and received by the appellant to the appellee’s use. The overruling of a motion made by the appellant for a new trial is assigned as error, the causes stated in the motion being that the verdict was contrary to law, and that it was not sustained by the evidence.

The contention here relates to the question whether the evidence established a defence of accord and satisfaction. We have carefully examined the evidence. In the transaction claimed by appellant as a compromise, his conduct was liable to the imputation of duplicity, and if the sum delivered by him to appellee could be said to have been accepted by the latter as in lieu of the larger amount held to his use by appellant, and the payment was not indeed merely a part payment of a matured liquidated money demand, it might, perhaps, have been considered by the jury that the acceptance was induced by appellant’s fraud. But the case need not be closely examined in these regards, for there was a conflict of testimony as to whether the sum paid by appellant to appellee was accepted by the latter in satisfaction of his demand.

To constitute accord and satisfaction, that which is received by the creditor must be accepted by him in satisfaction; he must intend to accept it as satisfaction; and whether there was such an acceptance is a question for the jui'y. Hardman v. Bellhouse, 9 M. & W. 596; Hall v. Flockton, 16 Q. B. 1039; Jones v. Johnson, 3 W. & S. 276; Hart v. Boller, 15 S. & R. 162; Brenner v. Herr, 8 Pa. St. 106; Stone v. Miller, 16 Pa. St. 450; Hearn v. Kiehl, 38 Pa. St. 147; State Bank v. Littlejohn, 1 Dev. & Bat. 563; Maze v. Miller, 1 Wash. C. C. 328; Western Union Tel. Co. v. Buchanan, 35 Ind. 429, 442 (9 Am. R. 744).

The conclusion reached by the jury upon conflicting testimony, sustained by the action of the court in overruling a motion for a new trial, can not be disturbed by this court.

The judgment should be afSrmed.

Per Curiam.

It is ordered, upon the foregoing opinion), that the judgment be affirmed, at appellant’s costs.

Petition for a rehearing overruled.