First State Bank of Panhandle v. Knapp , 3 S.W.2d 468 ( 1928 )

HAI/I), C. J.

The appellant bank sued J. H. Knapp and W. C. Metcalf upon a note in the principal sum of $2,335:88, upon which payments had been made, reducing the principal to $195.50, exclusive of interest and attorney’s fees. The defendants answered, alleging payment in full of the note, and further alleging that they had paid more than $50 in excess of the amount due, for which they asked judgment They also pleaded in defense an accord and satisfaction. The court submitted the issues to a jury. The jury answered only the first issue, which, together with the answer, is as follows:

“On September 21, 1925, there did not remain due and was not unpaid on the note sued upon any amount in excess of $1,684.21.”

From a judgment in accordance with this verdict, the plaintiff bank has appealed. Several propositions are urged in the brief, which it will not be necessary for us to consider in detail. It appears that the defendants made certain payments on the note out of the proceeds of the sale of their wheat crop, and on the 21st day of September, 1925,. Metcalf tendered to the bank his cheek in the sum.' of $1,6S4.21 in full payment of the note.

The testimony of the cashier of the bank showed that there was a dispute between the bank and the defendants with reference to the amount due, in which the defendants insisted that they had paid $218 more than the credits upon the note showed they were entitled to have. There was involved in the controversy the further sum of $35.50, expenses of a sale of certain property which had been made on the farm. From the check tendered by Metcalf, the bank deducted $340.61 interest, $35.50 expenses of the sale, and credited the note with the balance of $1,308.10. "When the parties failed to reach an agreement, Metcalf and Knapp left the bank, and at the same time left the cheek of $1,684.21 with the cashier. Metcalf wrote upon the check as follows: “Payment in full of note.” They failed to arrive at a settlement, because the bank insisted that the defendants were not entitled to the credit for $218.

Metcalf testified in substance that the bank never gave him credit for all of the wheat money; that $218 more had been paid than had been credited upon the note; that, when he gave the check to the cashier, the latter said he would not accept it as payment in full; and that he wanted the payment in full • erased. “I told him that he could erase it if he wanted to, but that I was giving it to him as payment in full, and that it was all that he’ or the bank would ever get. The plaintiff bank cashed the check. The cashier told me he would give me credit for the $218, if I would renew the note.”

Knapp testified that he was present when Metcalf and the cashier were trying to settle, and that Metcalf told the cashier that he was giving the cheek as payment in full, and that it overpaid it, and that he heard the cashier tell Metcalf on different occasions that the bank would give him credit for the $218 then in dispute if he would renew the note; that Metcalf claimed that he had paid the note in full, and the cashier claimed there was a balance due.

Having accepted the check, even under protest, after being told by Metcalf that it was given in full payment of all sums due on the note, and having thereafter cashed the check at the drawee bank, there has been an accord and satisfaction, and the bank was not entitled to recover. Buford v. Inge Construction Co. (Tex. Civ. App.) 279 S. W. 513; Simms Oil Co. v. American Ref. Co. (Tex. Com. App.) 288 S. W. 163; Clopton v. Caldwell County (Tex. Civ. App.) 187 S. W. 400; Early-Foster Co. v. W. F. Klump & Co. (Tex. Civ. App.) 229 S. W. 1015.

The judgment is affirmed.