1961). If there is "an offer of part payment of a creditor's claim in full satisfaction of the whole" claim, the offer "must be clear and unequivocal in order to bind the creditor by the acceptance thereof." Metropolitan Life Ins. Co. v. Perrin, 192 So. 12, 14 (Miss. 1939). The Plaintiff contends that it is entitled to summary judgment as a matter of law in that the Defendant's acceptance of the Plaintiff's August 23, 1990 check for $98,771.36 amounted to an accord and satisfaction.
(Hn 2) The burden of proving an accord and satisfaction is upon the one who maintains the affirmative of that issue. It is said the evidence must be "clear and unequivocal" in order to support such a finding. Metropolitan Life Ins. Co. v. Perrin, 184 Miss. 249, 259-260, 183 So. 917 (1938); Metropolitan Life Ins. Co. v. Perrin, 187 Miss. 37, 44, 192 So. 12 (1939); 1 Am. Jur., Accord and Satisfaction, Sec. 77; 1 C.J.S., Accord and Satisfaction, Secs. 48, 33. (Hn 3) Moreover, the fact that delivery of encumbered property to the creditor is made in discharge of the old debt must be made known to the creditor in some unmistakable manner. 1 C.J.S., ibid., Sec. 33; 1 Am. Jur., ibid., Sec. 69; see also ibid., Sec. 51.
VI. Acceptance of the checks did not constitute accord and satisfaction, and this defense was not raised in the proper manner. Dean v. Boyd, 86 Miss. 209, 38 So. 297; Metropolitan Life Ins. Co. v. Perrin, 187 Miss. 37, 192 So. 14; Rhodes v. New Orleans Great Northern R.R. Co., 129 Miss. 78, 91 So. 281; Talbert v. Melton, 17 Miss. 9, 9 Sm. M. 9; Vinson v. Cooley (Miss.), 54 So.2d 750; Wunderlich v. State Highway Comm., 183 Miss. 428, 184 So. 456; Sec. 1290, Code 1942; 1 Am. Jur., Sec. 75 p. 259; 1 C.J.S., Secs. 3, 35, 43, 47 (c) pp. 471, 539, 546, 551; Griffith's Miss. Chancery Practice (2d ed.), Secs. 301, 327, et seq. LEE, J.