Gruelle v. Lee ( 1876 )

Opinion by

Judge Cofer:

The sole ground for a new trial was that the appellants had discovered that they could prove by Eddleman that they paid to Marshall the sum of $40, which, with $20 theretofore paid him, made the sum of $60, which Marshall then and there agreed to accept, and did accept in full satisfaction for the services, the price of which was the subject of litigation in the principal action.

The answer in that action presented two issues: (1) That the services sued for were not worth more than $120; and (2) that the services rendered had been paid for. Upon those issues the appellant, J. A. Gruelle, testified as a witness, but failed to make any statement to the effect that Marshall had agreed to accept $60 in full satisfaction for the services sued for; and under the issue as presented such testimony would have been irrelevant. Having admitted that the services rendered were worth $120, and pleaded payment in full, evidence of an accord and satisfaction by the payment of a less sum would not have been admissible; and it results, therefore, that no new trial should be granted on account of the alleged newly discovered evidence, and the judgment must be affirmed.