Opinion
No. 41820.
April 17, 1961.
1. Appeal — reversal — entry of judgment on appeal for amount necessarily due.
Where jury found for seller in action for balance allegedly due on repossessed automobile, thereby rejecting defense of accord and satisfaction, but awarded lesser amount than necessarily due if there had been no accord and satisfaction, seller was entitled to entry of judgment on appeal for the greater amount.
2. Accord and satisfaction — burden of proof.
Burden of proving accord and satisfaction is on person maintaining affirmative thereon.
3. Accord and satisfaction — delivery of encumbered property to creditor as in discharge of debt — rule stated.
Delivery of encumbered property to creditor as in discharge of old debt must be made known to creditor in some unmistakable manner to give rise to accord and satisfaction.
4. Accord and satisfaction — repossession of car by seller with consent of buyer as not giving rise to — factual situation.
Conversation wherein seller merely informed buyer in default that he was going to repossess automobile and wherein buyer stated that, if that satisfied him, it was all right with buyer, could not constitute accord and satisfaction that repossession satisfy buyers entire debt.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Marion County; SEBE DALE, J.
Vernon H. Broom, Columbia, for appellant.
I. The Court erred in refusing to grant the request of the appellant to direct the jury to find for the appellant in the amount sued for after the appellee rested his case.
II. The language used by the appellee, assuming the truth of his statement, and the surrounding acts do not make out an accord and satisfaction. Roberts v. Finger, 227 Miss. 671, 86 So.2d 463; Stovall v. Lampton Company, 175 Miss. 58, 160 So. 39.
III. The Court was in error in admitting testimony of appellee over appellants objection which testimony related to insurance benefits recoverable by the appellee. This testimony was not relevant to the issues between the parties to this law suit.
IV. The Court erred in refusing to grant appellant's motion for a corrected judgment for the amount sued for where the amount of the verdict was so inadequate as to evince bias, passion or mistake.
V. A judgment is erroneous where the amount fixed in the judgment is less than the proof requires and where the appellant (plaintiff) is entitled to the entire amount sued for or nothing at all. Moore v. Montgomery Ward Co., 171 Miss. 420, 156 So. 875; Nichols Bus Trailer Co. v. Fuller, 198 Miss. 230, 22 So.2d 343; 49 C.J.S. 136, 460. Henry E. Pope, Columbia, for appellee.
I. The testimony of the appellee, and other testimony, made an issue of whether or not as a matter of fact there was accord and satisfaction. It was a proper issue for the jury to decide, and the jury decided it correctly. 1 Am. Jur., Accord and Satisfaction, Sec. 51.
The only question here is whether defendants testimony was sufficient to make a jury issue of accord and satisfaction.
Simmons brought this suit in the Circuit Court of Marion County, for the balance due and owing him by appellee Langston. Simmons operated the Simmons Motor Company in Columbia. On January 23, 1958, he sold Langston a new automobile. After the down payment, there was a balance due of $2,160, to be paid in thirty monthly installments of $72 each. The car caught on fire in April 1959, and was burned. A garageman pulled it into his shop, but made no repairs. In the same month Langston was one to five payments delinquent, and Simmons repossessed it. At that time there was a balance of $1,498 due under the conditional sale contract. Simmons had the car repaired, sold it at an auction for $575, and gave Langston credit for that amount. Defendant still owed the balance of $923, unless there was an accord and satisfaction, as Langston claims.
Defendants claim of an accord and satisfaction is based solely upon his testimony. He said that Simmons telephoned him and this transpired: "He called me at the shop and said, "Ray, I need some money out of that car. I have a chance to get my money out of it and I want the car' and he said, `I'm going after the car' and I said, `If that is what you want and that satisfies you it is OK with me' and I hung up. That is all that was said." There was no written agreement. Langston later described again what occurred. Simmons called him and said he wanted to get the car. "He told me, `I need some money out of that car. I'm going and get it, I have a sale for it' and I said, `If that satisfies you go ahead and get it' and that was the conversation.
"You thought the thing was all over with, did you?
"I did."
Simmons denied any such conversation with Langston before repossessing the automobile.
(Hn 1) The trial court submitted to the jury the issue of whether this constituted an accord and satisfaction. The jury must have rejected appellee's contention, since it returned a verdict for plaintiff for $122 plus 15 percent attorney's fee. Thereafter plaintiff filed a motion for a new trial, or a corrected judgment of the total amount sued for, which the court overruled. It should have sustained this motion, and rendered judgment for appellant for the requested amount. It is undisputed that Langston owed the entire sum, unless there was an accord and satisfaction. Hence appellant is entitled to a judgment here for the full amount, for two reasons: (1) the jury necessarily rejected defendant's claim of an accord and satisfaction, since it rendered a verdict in a lesser amount for plaintiff; and (2) the evidence was wholly insufficient to establish 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.
(Hn 4) Assuming the truthfulness of Langston's testimony about his telephone conversation with Simmons, it does not show an accord and satisfaction, under which the creditor was or should have been aware that he was repossessing the car in full satisfaction of defendant's debt. Plaintiff simply advised him that he was going to repossess the car. That was a right plaintiff had anyway under the contract. In response, defendant stated that, if that satisfies you, it is all right with him. Certainly this conversation does not indicate the parties agreed that repossession would satisfy Langston's entire debt to plaintiff. See 6 Corbin, Contracts (1951), Sec. 1280; 6 Williston, Contracts (1938), Secs. 1838, 1855, 1856.
Hence the judgment of the circuit court is reversed, and judgment is rendered here for appellant in the sum of $923, together with an attorney's fee of 15 percent thereof.
Reversed and judgment here for appellant.
McGehee, C.J., and Kyle, Gillespie and Jones, JJ., concur.