A. Greener & Sons v. P. W. Cain & Sons

Mississippi Supreme Court

A. Greener & Sons v. P. W. Cain & Sons

101 So. 859, 137 Miss. 33, 1924 Miss. LEXIS 199

CourtMississippi Supreme Court

DecidedNovember 3, 1924

DocketNo. 23777

StatusPublished

Cited by13 cases

This text of 101 So. 859 (A. Greener & Sons v. P. W. Cain & Sons) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

A. Greener & Sons v. P. W. Cain & Sons, 101 So. 859, 137 Miss. 33, 1924 Miss. LEXIS 199 (Mich. 1924).

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Opinions

Anderson, J.,

delivered the opinion of the court.

Appellants, A. Greener & Sons, sued appellees, P. W. Cain & Sons, for a balanc „ of one hundred thirteen dollars and twenty-five cents alleged to be due on open account. By consent of the parties the circuit court tried the case sitting as judge and jury, and rendered a judgment in favor of appellees from which appellants prosecute this appeal.

Appellants were wholesale merchants, in Memphis, while appellees were retail merchants in Monroe County in this state. Appellees purchased a bill of goods from appellants on which there was a balance due of one hundred and thirty-five dollars. Appellees admitted they were due appellants that amount, and that it was past due. The amount due was therefore liquidated and admitted by appellees to be overdue. Appellees tendered appel[35]*35lants in full payment and settlement of the indebtedness one hundred thirteen dollars and twenty-five cents worth of goods at invoice price which they had bought from appellants, and their check for the balance, twenty-one dollars and seventy-five cents, making the one hundred and thirty-five dollars. The tender was made in this manner: Appellees shipped to appellants by express the goods, and wrote appellants a letter, inclosing’; a check .for twenty-one dollars and seventy-five cents, upon which was noted “in full of account to date,” and asked appellants to accept the goods and the check in full of the indebtedness, claiming that on account of -dverse business conditions they could do no better. Appellants thereupon indorsed the check for twenty-one dollars and seventy-five cents, and took credit for the amount with their hank, which check in due course was paid by appellees. Appellants declined, however, to accept the goods shipped them by appellees, and promptly so notified the appellees, and demanded payment of the balance of one hundred thirteen dollars and twenty-five cents in money. Appellees refused payment, whereupon appellants brought this suit for said balance. Appellees’ position is that acceptance by appellants of the check for twenty-one dollars and seventy-five cents was .n acceptance also of the goods tendered by appellees. In other words, appellees contend that what took place amounted to an executed accord and satisfaction for a liquidated past-due indebtedness. On the other hand, appellants contend that the minds of the parties never met; that they had a right to accept and appropriate the check for twenty-one dollars and seventy-five cents, which was only a part of what was justly due them, and reject the tender of the balance in goods.

It was held in Clayton v. Clark, 74 Miss. 499, 21 So. 565, 22 So. 189, 37 L. R. A. 771, 60 Am. St. Rep. 521, that, although an unexecuted contract between debtor and creditor by which the latter agreed to take a less amount than owing on a past-due indebtedness was void and un[36]*36enforceable because there ivas no consideration, nevertheless, where such a contract had become executed, that is, where the lesser amount had been paid and the evidence of debt surrendered, the contract was binding, and the creditor could not sue for the balance, although there was no consideration for the new contract; that an executed contract of that character was tantamount to the creditor, making a gift to debtor of the balance due, which he had a right to do, and when done was binding between them.

We are of opinion that the principles laid down in that case are largely controlling here in favor of appellees. It is true that appellants declined the tender of the goods, but at the same time they accepted the tender of the check. This they could not do. The tender was an entirety. Appellants could not split it to suit themselves; they had to take all of it or none of it. And when they took part of it the law imposed the duty upon them to take the balance whether they would or not. They had to accept or reject the tender according to its terms. Putting it differently, their acceptance and appropriation of the check was unauthorized, unless at the same time they were willing to take the balance due in the goods tendered by appellees.

Affirmed.

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Anderson, J.,

delivered the opinion of the court.

Appellants, A. Greener & Sons, sued appellees, P. W. Cain & Sons, for a balanc „ of one hundred thirteen dollars and twenty-five cents alleged to be due on open account. By consent of the parties the circuit court tried the case sitting as judge and jury, and rendered a judgment in favor of appellees from which appellants prosecute this appeal.

Appellants were wholesale merchants, in Memphis, while appellees were retail merchants in Monroe County in this state. Appellees purchased a bill of goods from appellants on which there was a balance due of one hundred and thirty-five dollars. Appellees admitted they were due appellants that amount, and that it was past due. The amount due was therefore liquidated and admitted by appellees to be overdue. Appellees tendered appel[35]*35lants in full payment and settlement of the indebtedness one hundred thirteen dollars and twenty-five cents worth of goods at invoice price which they had bought from appellants, and their check for the balance, twenty-one dollars and seventy-five cents, making the one hundred and thirty-five dollars. The tender was made in this manner: Appellees shipped to appellants by express the goods, and wrote appellants a letter, inclosing’; a check .for twenty-one dollars and seventy-five cents, upon which was noted “in full of account to date,” and asked appellants to accept the goods and the check in full of the indebtedness, claiming that on account of -dverse business conditions they could do no better. Appellants thereupon indorsed the check for twenty-one dollars and seventy-five cents, and took credit for the amount with their hank, which check in due course was paid by appellees. Appellants declined, however, to accept the goods shipped them by appellees, and promptly so notified the appellees, and demanded payment of the balance of one hundred thirteen dollars and twenty-five cents in money. Appellees refused payment, whereupon appellants brought this suit for said balance. Appellees’ position is that acceptance by appellants of the check for twenty-one dollars and seventy-five cents was .n acceptance also of the goods tendered by appellees. In other words, appellees contend that what took place amounted to an executed accord and satisfaction for a liquidated past-due indebtedness. On the other hand, appellants contend that the minds of the parties never met; that they had a right to accept and appropriate the check for twenty-one dollars and seventy-five cents, which was only a part of what was justly due them, and reject the tender of the balance in goods.

It was held in Clayton v. Clark, 74 Miss. 499, 21 So. 565, 22 So. 189, 37 L. R. A. 771, 60 Am. St. Rep. 521, that, although an unexecuted contract between debtor and creditor by which the latter agreed to take a less amount than owing on a past-due indebtedness was void and un[36]*36enforceable because there ivas no consideration, nevertheless, where such a contract had become executed, that is, where the lesser amount had been paid and the evidence of debt surrendered, the contract was binding, and the creditor could not sue for the balance, although there was no consideration for the new contract; that an executed contract of that character was tantamount to the creditor, making a gift to debtor of the balance due, which he had a right to do, and when done was binding between them.

We are of opinion that the principles laid down in that case are largely controlling here in favor of appellees. It is true that appellants declined the tender of the goods, but at the same time they accepted the tender of the check. This they could not do. The tender was an entirety. Appellants could not split it to suit themselves; they had to take all of it or none of it. And when they took part of it the law imposed the duty upon them to take the balance whether they would or not. They had to accept or reject the tender according to its terms. Putting it differently, their acceptance and appropriation of the check was unauthorized, unless at the same time they were willing to take the balance due in the goods tendered by appellees.

Affirmed.

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101 So. 859, 137 Miss. 33, 1924 Miss. LEXIS 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-greener-sons-v-p-w-cain-sons-miss-1924.

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