Rhodes & Son Co. v. Outcault Advertising Co.

Evans, P. J.

1. Where under a contract stated amounts are to become due at fixed periods, a remittance by one party to the other by check of the amount due under the contract, and which is admitted to be presently due, with the- request that the amount be accepted “in full settlement and termination of” the contract, will not operate as an accord and satisfaction of the entire contract, although the cheek be retained by the creditor in payment of the amount due at the time of its receipt.

2. It is incumbent upon a debtor who seeks to imply an accord and satisfaction of a debt due by installments,. some of-which are not due, from the conduct of his creditor in accepting a check for an installment admitted to be due, to make it clearly appear that the sum paid was tendered and accepted on condition that it was in full discharge of all installments, both those that were due and were to become due.

Judgment affirmed.

All the Justices concur. Hardeman, J ones, Callaway £ J ohnslon, for plaintiff in error. West & Dasher, contra.