Opinion
No. 43931.
April 18, 1966.
Appeal from Circuit Court, George County, D.M. Maples, J.
Curtis Breland, Leakesville, for appellant.
William T. Bailey, Lucedale, for appellee.
Appellee, Sanders Oil Company, brought this action on a sworn open account in the Circuit Court of George County against Clifton S. Wade, appellant. Wade claimed an accord and satisfaction and estoppel and the jury found for him. However, the trial court sustained the motion of Sanders for a judgment notwithstanding the verdict, and rendered judgment for it. There is no dispute about the amount owed, if there was no accord and satisfaction.
For about two years Wade, a school teacher, operated on the side an automobile service station in Columbus. He purchased petroleum products from Sanders for sale on the retail market. When the business arrangement ended in January 1960, Wade owed Sanders $5,292.35. He moved to another town and left the accounts receivable with Sanders, with the understanding that if any of them were paid, Sanders would credit him with the amount of his debt. Subsequently Sanders collected for Wade $789.15, credited him with that amount, and brought this action for the balance of $4,503.20.
The Circuit Court was correct in rendering judgment for appellees, since the evidence was insufficient to show an accord and satisfaction. The burden of proving an accord and satisfaction is upon the one who maintains the affirmative, and the evidence must be clear to support such a finding. Simmons v. Langston, 241 Miss. 36, 128 So.2d 749 (1961); 1 C.J.S. Accord and Satisfaction § 48 (1956). Wade did not make a written assignment of the accounts receivable which he left with Sanders to collect for him. Nor does the evidence show an oral assignment, but simply a request that Sanders collect for Wade any accounts receivable which might be realized upon. Wade admitted that Sanders only agreed to try to collect the accounts, and that Mr. Sanders did not say that Wade would be relieved of any responsibility or liability to the company. Since appellant's evidence was not sufficient to make a jury issue on accord and satisfaction (or estoppel), the trial court properly rendered judgment for Sanders.
Affirmed.
BRADY, PATTERSON, SMITH and ROBERTSON, JJ., concur.