Cahaba Coal Co. v. Hanby

61 So. 33, 7 Ala. App. 282, 1913 Ala. App. LEXIS 61

Opinion

PELHAM, J.-

The error assigned and insisted upon by appellant is that the court sustained the plaintiff’s demurrers to defendant’s fourth special plea. This plea attempts to set up a discharge of the contract or demand sued upon by what is termed in the body of the plea an “accord and satisfaction.” It is not averred in the plea that the sum included as salary in the “cost sheet” prepared or inspected by plaintiff was paid by the defendant or received by the plaintiff in full satisfaction of the demand sued upon. The plea was in bar of plaintiff’s action; and, construing the plea most strongly against the pleader, the payment averred to have been made was but a partial payment, and no bar to an action to recover the balance due.

The plea is not good as showing an accord and satisfaction; nor does it aver sufficient facts setting up an estoppel. The demurrers pointed out the defects in the plea, and were properly sustained.

Affirmed.