Williams v. Langford , 54 Ky. 566 ( 1855 )

Judge Crenshaw

delivered the opinion of the Court—

It is manifest that the proof does not show payment of all the installments provided for in the covenant down to the death of Williams. So far, therefore, as full payment or “covenants performed,” is relied upon in the answer, the defense was not sustained by the testimony.

The answer sets out three matters of defense, to-wit: payment, covenants performed, and accord and satisfaction by the payment of one hundred dollars a ■ short timé before the death of Williams.

The answer was demurred to, because these different matters of defense were not set out in separate and distinct pragraphs, and because the matter of accord and satisfaction was not sufficiently pleaded. However desirable it may be that the requisitions of the Code should be conformed to in all respects, the fact that the different defenses were not set out in separate paragraphs is not cause of demurrer, but of a motion to the court to have the different defenses sét out in distinct paragraphs.

These different defenses, however, were as distinct as set out,' as if they had been contained in separate paragraphs; and the demurrer ought not to have been to the whole answer, which contains two valid defenses, but only to that part of the answer which relied upon accord and satisfaction. The two defenses of payment and covenants performed were well pleaded, but the defense of accord and satisfaction is not well pleaded, and the demurrer ought to have been sustained to this latter defense, had it been to this part of the answer only; but, being to the whole answer, which presented some good defenses, it was properly overruled.

In order that the defense of accord and satisfaction should be availing, it was not sufficient to allege that one hundred dollars had been paid to Williams a short time before his death, and that he received this sum in full satisfaction of the covenant sued on; but in order to constitute the defense a good one, it ought to be made appear in the answer, that at the time of such payment and acceptance, /ess than the sum paid was then due upon the covenant. This the answer does not attempt to show. And the court, in its instructions to the jury, ought to have disregarded this defense. But instead of doing so, the court instructed the jury that if they believed from the evidence, that a sum had been paid and accepted by Williams in full of the covenant sued on, they must find for the defendant. If this sum was then due, its payment and acceptance in full satisfaction cannot bar the action.

Wherefore, the judgment is reversed, and the cause remanded for a new trial and further proceedings not inconsistent with this opinion.