Barrett v. Kern , 141 Mo. App. 5 ( 1909 )

REYNOLDS, P. J.

(after stating the facts). — ■ I. Counsel for defendant contend that there is absolutely no evidence to support the judgment in favor of plaintiff on the issue of payment. We have accordingly read all the evidence, as set out in the transcript, and are forced to the conclusion that this contention cannot he sustained.'

The burden of proving payments rest's on defendant. Griffith v. Creighton, 61 Mo. App. 1, l. c. 4, is one of the many cases so holding. He has not met it.

It was said' by counsel for plaintiff, during the course of an argument over certain testimony, that the defendant, Mr. Kern, “would be the last man, if he was convinced that that thousand dollars had not been paid at that time, to dispute it.” Wé have set out substantially the testimony given by defendant as to the fact of payment, and accepting in full the endorsement of counsel for plaintiff of the high character of Mr. Kern, we are compelled to say, that his own testimony falls-far short of being a positive and unqualified statement that he has paid the amount called for under the contracts. Clearly, as a highly conscientious man, he would not swear to a matter in unequivocal terms, as to which we was not absolutely sure, and he did not do so. His testimony threw upon the very learned and careful trial judge the burden of determining between it and the positive testimony given by plaintiff. The trial judge found for plaintiff. We are bound by that finding.

II. That resolves the case into one of accord and satisfaction — the burden of establishing which also rests on defendant. [Oil Well Supply Co. v. Wolfe, 127 Mo. 611, l. c. 625.]

Whether there was an accord and satisfaction was also entirely a question of fact. If the trial of this case had been before the jury, it would have been for the court to have submitted to the jury, under proper instructions as to the essentials of accord and satisfaction, the question of whether there had been accord and satisfaction. [Oil Well Supply Co. v. Wolfe, supra; Robinson v. Railroad, 84 Mich. 658.] So therefore the solution of that fact must also rest on the finding of the trial judge, if that finding is supported by any substantial evidence and there was no error of law.

The accord and satisfaction here relied on, is founded on the transaction at Chicago, December 20, 1904, and upon the words, “Full all demands,” written over the check for $83.02, remitted by defendant to plaintiff.

While it is true that those words are on this check and that the check was cashed, an examination of the letter transmitting it, it seems to us, not only fell short of any intimation that it was intended to be in full of all possible claims and demands from plaintiff on defendant growing out of this transaction, but that plaintiff most clearly did not so consider it, and did not accept it with any such understanding. Defendant in his letter of transmittal of this check wrote, in part: “I enclose check for $83.02, assuming if eventually I am right you will return to me.” Plaintiff in reply wrote: “I have yours of the 19th with check for $83.02, which amount I think will be found correct. At all events it is open for correction.”

Moreover it was for a balance due on interest on the $2,284.42, from December 20, 1904, to April 29,1904, remitted on demand for the interest. Extending it beyond interest and covering the matters then in dispute or controversy between the parties, it related to the issue of whether defendant, on December 20, 1904 owed $1,-284.42 or $2,284.42. Neither party, in the discussion of that had any other sum or demand in mind. The thousand dollars now in controversy was then not only unthought of, but unknown; there was then no controversy about that to be settled — it was not the subject of discussion, much less of contention. Hence, treating this check as in full of all demands, it could only be regarded as in full of all demands then made and under mutual consideration.

The question over this thousand dollars now in suit, came up afterwards; it was a demand which rested on the contract, for a balance of $1,000, due on a contract, plainly demanding payment of $8,200.

The statement, in response to which this check was transmitted, calls for $283.02, and was a statement of interest. Two hundred dollars had been previously paid and was credited, and the $83.02 was the balance due. It might well be that it related solely to the interest account. Turning to the letter of transmittal and to the one acknowledging its receipt, we find that the matters between the parties were still open to future adjustment and correction. Looking at the transaction in Chicago on December 20, 1904, and to the correspondence following that, we find that the parties very carefully left the door of settlement wide open — each carefully reserving the right of future adjustment.

It is of the very essence of accord and satisfaction that it finally and definitely closes the matter covered by it. Nothing of or pertaining to that matter, must be left unsettled or open to further question or arrangement. In law it is a new contract, founded on a new consideration and, to be enforceable, it must have all the essential elements of a contract, .among them, mutuality and certainty.

It cannot he said that there was a fair and well understood compromise of any and all demands that might arise under these contracts, and without that, there is no valid accord and satisfaction. [Dry Goods Co. v. Goss, 65 Mo. App. 55, l. c. 61.] The propositions that an accord and satisfaction to be binding must be mutually agreed to and accepted as accord and satisfaction, is elementary. Unless paid, this thousand dollars was unquestionably due and the payment of a smaller sum was not a satisfaction of it — even if accepted by plaintiff. [Pollman Coal Co. v. St. Louis, 145 Mo. 651, l. c. 656; Wetmore v. Crouch, 150 Mo. 671, l. c. 683; Winter v. K. C. Cable Ry. Co., 160 Mo. 159, l. c. 178; McCormick v. City of St. Louis, 166 Mo. 315, l. c. 345.] Therefore the conclusion of the trial judge, that accord and satisfaction has not been proven, is binding upon us, there being evidence to support it.

Counsel for defendant have cited many and quoted some cases defining what constitute accord and satisfaction. An examination fails to bring this case within them.

The judgment of the trial court is affirmed,

all concurring.