Cooper v. Yazoo & Mississippi Valley Railroad , 82 Miss. 634 ( 1903 )

Whitfield, C. J.,

delivered the opinion of the court.

We think there was an accord and satisfaction in this case. The best discussion by far of the doctrine of accord and satisfaction we have anywhere found is that by Judge Seymour D. Thompson in 1 Cyc. of Law & Procedure, p. 305 et seq. At page 331 he states the law applicable to the case made by the testimony here: “In order that the payment of a smaller sum than demanded shall operate as a satisfaction of the claim, it must be accepted as such. Where a person accepts a tender, but not in full of all demands, this acceptance will not conclude him from claiming more. The nature of the offer or tender by the debtor is an important consideration in determining whether there has been an accord and satisfaction. To constitute an accord and satisfaction, it is necessary that the money should be offered in full satisfaction of the demand, and be accompanied by such acts and declarations as amount to a condition that the money, if accepted, is accepted in satisfaction; and it must be such that the party to whom it is offered is bound to understand therefrom that, if he takes it, he takes it subject to such conditions. The mere fact that the creditor receives less than the amount of his claim, with knowledge that the debtor claims to be indebted to him only to the extent of the payment made, does not necessarily establish an accord and satisfaction. Where, however, a sum of money is tendered in satisfaction of the claim, and the tender is accompanied by such acts and declarations as amount to a condition that, if the money is accepted, it is accepted in satisfection, and such that the party to whom it is offered is bound to understand therefrom that, if he takes it, he takes it subject to such condition, an acceptance of the money offered constitutes an accord and satisfaction. This is true, although the creditor protests at the time that the amount paid is not all that is due, or that he does not accept it in full satisfaction of his claim. Where the tender or offer is thus made the party to whom it is made has no alternative but to refuse it or accept it upon such condition. If he accepts it he accepts the condition also, notwithstanding any protest he may make to the contrary.” This is the true principle. Tke debtor making tender of a certain sum in full satisfaction has tke right to attack to kis tender snck lawful conditions as he pleases, and tke creditor accepting under suck circumstances must accept tke tender as conditioned. Tkis is good sense and sound law, and we may add tkis is tke law generally, quite independently of tke principle announced in Clayton v. Clark, 74 Miss., 499, 21 South., 565, 22 South., 189, 37 L. R. A., 771, 60 Am. St. Rep., 521. See, specially, Fuller v. Kemp (N. Y.), 33 N. E., 1034, 20 L. R. A., at page 809, and also Bromley v. School District, 47 Vt., 381. Many other authorities to tke same effect are collated in tke very accurate and discriminating brief of learned counsel for tke appellee. See, specially, Darrill v. Dodds, 78 Miss., 912, 30 South., 4. To hold, in a case where the debtor tenders a certain sum in full satisfaction, and requires a written acceptance of it as received in full satisfaction, which acceptance is duly signed, that tke creditor so accepting can, by merely protesting, discharge tke tender of tke express conditions on which alone it is made, would be to declare that tke debtor has not tke legal power to attack any conditions to kis tender, and tkis manifestly is unsound. ■

Affirmed.