Opinion
No. 36346.
March 10, 1947.
1. ACCORD AND SATISFACTION. Compromise and settlement.
Contract between corporation and holder of its notes that notes would be placed in escrow for two years to abide payment of corporation's new note in favor of holder, and that, in event of payment of new note, claim on other notes would be liquidated, but if new note was not paid, original notes would be redelivered and entire account made current, was not an "accord and satisfaction" nor an "executed compromise," but a mere "option" to corporation to commute entire indebtedness by paying new note.
2. LIMITATION OF ACTIONS.
Contract between corporation and holder of its notes that notes would be placed in escrow for two years to abide payment of corporation's new note in favor of holder, and that, in event of payment of new note, claim on other notes would be liquidated, but, if new note was not paid, original notes would be redelivered and entire account made current, was an acknowledgment in writing of the debt and took the claim on original notes from under the bar of limitations (Code 1942, sec. 748).
3. LIMITATION OF ACTIONS.
Acknowledgment in writing of a debt, which will take the claim from under the bar of limitations, is not impaired by superficial uncertainties as to exact amounts due, where the uncertainties are resolvable by explanation (Code 1942, sec. 748).
APPEAL from the chancery court of Chickasaw county. HON. ALVIS MITCHELL, Chancellor.
George Bean, of Okolona, and James A. Finley, of Tupelo, for appellant.
The contract of February 28, 1934, between Arthur Delapierre, Inc., and Charles H. Cowen, is an acknowledgment in writing, signed by the party chargeable thereby, and is therefore taken out of the operation of the statute of limitations.
Beasley v. Evans, 35 Miss. 192; Yarbrough v. Gilland, 77 Miss. 139, 24 So. 170; Tennessee Brewing Co. v. Hendricks, 77 Miss. 491, 27 So. 526; Taylor v. Desoto Lumber Co., 137 Miss. 829, 102 So. 260; Richter-Phillips Co. v. Phillips, 175 Miss. 242, 166 So. 393; Code of 1942, Sec. 748.
By the written contract Arthur Delapierre, Inc., acknowledged itself indebted to Cowen in the sum of $73,474.08, $53,400.00 of which is represented by notes and the remainder was acknowledged to be past due salary with interest. For this entire indebtedness Cowen accepted a $12,000.00 note of Arthur Delapierre, Inc., due in two years, in settlement of the entire claim. The contract provided that the notes totaling $53,400.00 were to be placed in escrow and if the $12,000.00 note was paid in full they were to be surrendered to Arthur Delapierre, Inc., and cancelled. And it further provided that if the $12,000.00 note was not paid the notes in escrow were to be returned to Cowen. The $12,000.00 note was never paid; therefore, the original debt, having been revived by the written contract, is still due.
A receiver is entitled to reasonable compensation for his services. But the allowance should be made with a jealous regard for the rights of all concerned.
Hyre et al. v. Johnson, 64 A.L.R. 1536. Paul M. Moore and W.J. Evans, both of Calhoun City, and H.B. Abernathy, of Houston, for appellee.
The lower court was correct in holding these claims barred by the statute of limitations as well as under the many objections raised as to the validity of this claim. It does not make any difference whether the lower court was right on the particular grounds stated in the disallowance of these claims, for if the decree of the court was good on any of the grounds it is sufficient and should be sustained.
Yazoo M.V.R. Co. v. Adams, 81 Miss. 90, 105, 32 So. 937.
A claim filed against a trust estate of the nature of this receivership must be sufficient within itself before a receiver would be justified in paying it.
53 C.J. 238, Sec. 395.
A demand note is due immediately upon its execution and suit may be brought thereon without any actual demand. Therefore, the note would be barred six years after the date of its execution.
Gibbons v. Longino Reid, 153 Miss. 749, 121 So. 490; S.S. Finger Mercantile Co. v. Adair, 159 Miss. 303, 131 So. 875.
If his claim was to be lodged on an acknowledgment or new promise, it would have been necessary to have specifically pleaded the same in order to have taken advantage of an opportunity to prove it. Such is required under our pleading in Mississippi and has been so held in a case of this nature.
Taylor v. Desoto Lumber Co., 137 Miss. 829, 102 So. 260; Tennessee Brewing Co. v. Hendricks, 77 Miss. 491, 27 So. 526; 37 C.J. 1123, Sec. 602.
If claim is made on a new acknowledgment or promise it must be brought within the statutory period after the new promise or acknowledgment.
See 37 C.J. 1098, Sec. 566.
The agreement alleged to have been entered into by and between Cowen and the corporation was intended only for a compromise agreement. An acknowledgment or promise to pay any amount cannot be inferred therefrom. It was intended as nothing more than a compromise, which negates the idea or intent to acknowledge or promise.
Philip v. Hicks, 112 Miss. 581, 73 So. 610; Code of 1942, Sec. 748; 37 C.J. 1124, Sec. 604.
This claim should be held as barred on the ground of laches. Certainly there was such delay in giving the receiver and other interested parties in this corporation notice as to have caused an inequitable advantage to have been gained by the alleged new promise. The receiver or other parties had no knowledge of the alleged agreement or way of obtaining knowledge thereof until this cause came on for hearing, when this agreement was introduced for the first time.
The compensation allowed receivers and attorneys should be at the rate ordinarily paid for somewhat similar services in official lines, and using this as a criterion to go by, the chancellor failed to make allowances as were paid for similar services in other official lines or other adminstrative fields.
Lichtenstein v. Dial, 68 Miss. 54, 8 So. 272; 53 C.J. 380, Sec. 617; 45 Am. Jur. 224, Sec. 288; Clark on Receivers, Sec. 642.
On April 17, 1937, appellee was duly appointed receiver for Arthur Delapierre, Inc. After notice to creditors to file claims, Charles H. Cowen filed claim in the sum of $73,474.08, representing certain promissory notes executed by the corporation and unpaid salary. This claim was duly assigned to appellant.
The chancellor disallowed this claim as being barred by the statute of limitations. It is true that the notes and salary claim are so barred if we look only to the dates of the notes and the periods at which the salary items accrued. However, on February 28, 1934, a contract was entered into in writing, executed by the corporation and Charles H. Cowen, in which the notes were described by their respective dates and amounts and the items of salary accruals by an attached schedule which sets out dates and itemizes the balances as they accrued. The contract provided that the several notes above referred to would be placed in escrow for two years to abide the payment of a new note by the corporation in the sum of $12,000 in favor of Cowen. In the event of payment of the $12,000 note the entire claim, theretofore existing, of $73,474.08, would be thereby liquidated and the original notes delivered by the escrow agent to the corporation. If the lieu note was not paid at maturity, the original notes would be redelivered to Cowen and the entire account made current. The $12,000 note was not paid.
This agreement, under seal of the corporation, was not an accord and satisfaction nor an executed compromise. It constituted a mere option to the corporation to commute the entire indebtedness by paying within two years the sum of $12,000. Default in payment of this note restored the status quo ante.
The agreement had further significance. It acknowledged by a writing that "the party of the second part (the corporation) is indebted to party of the second part (Cowen) in the sum of $53,440 and interest under certain promissory notes." The contract further makes note of the unpaid salary account, totaling $20,034.08, and sets same out in some detail with dates.
We think this contract as an acknowledgment in writing of the debt takes the claim from under the bar of the respective statutes. Beasley v. Evans, 35 Miss. 192; Yarbrough v. Gilland, 77 Miss. 139, 24 So. 170. It is true that the dates identifying the several notes were not disclosed as being dates of execution or maturity, and that the notes were further described as owing to Charles H. Cowen "and the estate of Mary E. Cowen," and further that the salary account defies any but expert accountancy to reconcile the several debits and credits. Yet it remains that the claim which followed the content and detail of the contract, is sufficient to sustain a recovery for such amounts as may be ascertained upon examination and calculation by the chancellor. Superficial uncertainties as to exact amounts due, resolvable by explanation, are not sufficient to impair identification of the indebtedness under Code 1942, Sec. 748. Hart v. Boyt, 54 Miss. 547; Stewart v. Forman, 90 Miss. 85, 43 So. 67. Compare Taylor v. DeSoto Lumber Co., 137 Miss. 829, 102 So. 260, 103 So. 82.
The claim was not heard upon its merits, but was disallowed by the chancellor as being barred. We find this to be error.
There is no error in allowing the claim to be filed after expiration of the original notice period. There was no prejudice to the receiver shown, and its exclusion on this ground was denied by the chancellor.
Other objections to the claim were set up and argued by the receiver. We find them without substantial basis and do not incorporate a discussion thereof in our opinion. We remand the cause for an adjudication of the claim upon its merits and to the extent of the interest therein possessed by the appellant as assignee.
Both parties contest the allowance of the fees to the receiver and to his solicitors, appellant asserting excessiveness and appellee by cross-appeal alleging inadequacy. Our reaction to the allowance made to the present counsel for the receiver is one of inadequacy, and we find no basis for the apparent disparity between the fees to counsel and to the receiver. We cannot, however, support a view that the learned chancellor abused his discretion in this matter nor can we assume otherwise than that he took into account relevant factors not revealed by the record. We have in mind the necessity for remand and trial upon this claim and rest assured that the chancellor, in taking into account the additional services hereby made necessary, will avail of the opportunity to make such revision or adjustment as is merited. We do not find this to be such a case as authorizes us to fix additional counsel fees for services rendered upon appeal.
Reversed and remanded.