SHERMAN v. STEWART

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Docket Number

No. 38634.

Judges

ROBERDS, P.J.

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SHERMAN v. STEWART.

A.K. Edwards, for appellant.

Cited and discussed the following:

Chap. 230, House Bill No. 530, Laws 1948; Sec. 1477, Code 1942; Lay, et al. v. Filmore, 75 Miss. 493, 23 So. 184; Shapleigh Hardware Co. v. Brumfield, et al., 132 So. 93; Neely v. Allis-Chalmers Mfg. Co., 174 Miss. 519, 165 So. 114; Sec. 531, Code 1930; Sec. 533, Code 1930; Weil Bros. v. Wittjen, 116 Miss. 514, 77 So. 308; Stone v. Grenada Grocery, 1 So.2d 229.

J. Ed Franklin and Lamar F. Easterling, also for appellant.

Looking through the whole case, the entire record, it is apparent that the appellant has not had his day in court, that he went to trial on matters distinctly at issue by the declaration and the answer thereto. The issues were sharply drawn. The plaintiff averred and the defendant denied that the defendant owed the plaintiff anything on the account; denied that the items specified in the affidavit to the answer were correct; denied that any of the items were correct and denied that defendant owed the plaintiff anything. The answer further claimed in strict accordance with the law of set-off that certain items named and specified had been sold and furnished to the plaintiff to be applied on the account as credits and that these items were not credited on the account. All of these matters were at issue.

The result is that the court allowed it to be tried on only the issue of accord and satisfaction and refused to permit defendant to prove any of the matters at issue; that the court tried an issue that it was in accord and satisfaction, but in the trial of this issue, even if it had been admitted to be tried on that issue separately before the jury, there was excluded from the jury facts that were material to a full investigation as to whether or not there was in truth and in fact an agreement on the part of the plaintiff in the light of the disputed account to accept the $200.00. If all of the facts had been in, who can say that the jury would not have been justified in sustaining the appellant's answer and in finding for him.

Defendant claimed that certain items were improperly charged, that credits had not been given that ought to have been given and that defendant did not owe any of it. These were jury questions. The fullest scope should have been allowed for investigation of all the items of dispute and whether or not the lumber had been furnished and every other material fact necessary to develop the case so as to give the jury a full and fair understanding of the questions and controversies involved.

According to counsel's contention, if the litigant attempted to amend his answer of denial by inserting another additional affirmative defense and made an error in judgment, then he would lose his case. This certainly cannot be the law; this certainly is not a reasonable construction of the Act of 1948. This amendment sought to obviate putting defenses in formal special pleas, in addition to the general issue, by requiring a defendant, instead of filing pleas, setting up defenses allowed under the law as it then existed to allow defendant to file an answer instead of pleas answering all of the allegations of the bill or declaration with the right to incorporate therein any additional affirmative pleas allowed under the law. Furthermore, even if the affidavit was stricken, we submit that appellant would have had the right in the trial of his case on his answer taking issue to the material allegations of the answer to have gone to trial on the question of set-off of failure to credit and that he cannot be deprived of this right to present his defense or defenses to the suit. Stockstill v. Gerson, 35 So.2d 60. R.C. Russell and Billy C. Little, for appellee.

We maintain that when appellant went to trial on his plea of accord and satisfaction instead of proceeding on Exhibit "A" that he waived his right to try said cause or the issues involved in Exhibit "A," other than the trial thereof on the accord and satisfaction plea. It is to be observed that Chap. 230, Laws 1948, gave the trial judge in the circuit court wide discretion in the matter of pleas and when any matter raised by the pleading or any part of the pleading is "clearly distinct and readily separable and goes to the entire present cause of action it may, on motion of either or any of the parties, be separately heard and disposed of before the principal trial of the cause in the discretion of the court." That the trial court in the instant case proceeded to hear said motion to strike Exhibit "A" after filing the plea of accord and satisfaction which covered all items embraced in said Exhibit "A" and in view of this situation and these facts, how can it be said that the trial court abused its discretion in hearing and disposing of said exhibit in the manner which it did as shown by this record?

Appellant's counsel are in error in their assumption that we assumed upon the trial of this cause that the filing of the plea of accord and satisfaction precluded appellant from trying the matters contained in Exhibit "A." When as a matter of fact we assumed no such attitude, but simply moved the court to strike said exhibit since said supplemental answer covered all the items, so enmeshed in Exhibit "A" and furthermore according to our view of the pleading Exhibit "A" in the form in which it was presented is in substance nothing more than accord and satisfaction. It is further to be observed that this plea of accord and satisfaction was a short form and a shorter procedure upon which the case was to be tried, as will clearly appear from an examination of Exhibit "A" and said plea. That after the elimination of Exhibit "A" appellee and appellant proceeded to trial upon the whole case as then presented by the answer in the amendment thereto, of accord and satisfaction. It is appellee's view that the items contained in said exhibits are now res judicata.

Appellee would respectfully call the Court's attention to the case of Christopher v. Brown, 51 So.2d 579, where the Court said speaking through Mr. Justice Lee that: "The above enactment was the Legislative response to a widespread demand for the expedition of trials in the circuit court. To that end, it requires that all defenses shall be stated in the answer. Pleas in abatement are specifically mentioned. Provision is made for those cases wherein some particular defense is clearly distinct, readily separable and goes to the entire cause of action, any of the parties may move for a separate hearing thereon. In granting or refusing such motion, the trial judge exercises judicial discretion."

The record of the case before the Court shows that the trial court followed the procedure and rule of law announced in the Christopher case, and furthermore the record shows beyond the peradventure of a doubt that every legal right that appellant had was preserved and given him in the trial of the instant case, and he certainly has no right to complain, of any action on the part of the trial court, because he could have abandoned his plea of accord and satisfaction and proceeded on his answer with Exhibit "A" attached, since his plea of accord and satisfaction embraced and included every item in Exhibit "A."

1. Pleadings — open account — several defenses.

In an action on itemized open accounts the new statute allows the defendant to set up in his answer, as in other cases, as many defenses as he may have, and therefore he may answer particularly denying the debt in whole or in part, and plead therein a set-off and also an accord and satisfaction. Chap. 230, Laws 1948.

2. Pleading — several defenses — trial.

Where in an action on open accounts the defendant had set up in his answer several legitimate defenses including an accord and satisfaction it was error to strike the other defenses and put the case on trial on the sole issue of accord and satisfaction, and to deny to the defendant, when stated issue was decided against him, the right to a trial on the other issues. Chap. 230, Laws 1948.

3. Trial — several defenses.

In case stated, the issues as to the amount owing, if any, by the defendant had a relevant importance on the issue of accord and satisfaction, wherefore it would have been better to have submitted for one trial all the issues presented under the pleadings; but the question of separate trials is largely, if not entirely, within the discretion of the trial judge provided an opportunity is given in such separate trials to litigate all the legitimate issues presented by the pleadings. Chap. 230, Laws 1948.

Headnotes as approved by Roberds, P.J.

ROBERDS, P.J.

Stewart Company, a corporation, as plaintiff below, by its declaration herein, claimed that Sherman, the appellant, was indebted to it in the sum of $833.21. It was alleged this indebtedness consisted of two accounts — one, called the store account, was for merchandise sold and delivered Sherman in the amount of $116.39, and the other, called the garage account, consisted of work done upon and parts furnished for motor vehicles operated by Sherman, in the amount of $616.82. Both accounts were itemized and were supported by an affidavit as to their correctness.

Sherman answered. He denies he was indebted to Stewart. He listed the charged items which he said were incorrect and were not owing by him, supporting his denial by proper affidavit. He also said he had sold and delivered to Stewart lumber aggregating $301.95, for which Stewart had agreed, but had failed, to give him credit on his account. The denied items, plus the price of the lumber, amounted to more than the claim of plaintiff.

In addition to this, Sherman asserted that a dispute existed as to the correctness of the account and the amount, if any, he owed Stewart; that this was a matter of disagreement and discussion between them, and that it was agreed that he, Sherman, would pay the sum of $200.00 in full settlement of his indebtedness to Stewart and that on October 27, 1951, he did pay that sum in full accord and satisfaction of the debt.

Stewart denied Sherman had sold it any lumber, and denied any settlement was had between them.

That was the state of the issues when the case came on for trial. At this stage plaintiff made a motion to strike defendant's list of denied items and the supporting affidavit. The court sustained that motion. Appellant says that was reversible error. The trial was limited by the instructions to the issue of accord and satisfaction. Verdict and judgment were entered for Stewart for $833.21, the full amount for which suit was brought.

We do not know the reason prompting the action of the trial judge as above shown. Denial of certain charged items and of the entire claimed indebtedness and accord and satisfaction could be pleaded together. Section 1477, Code 1942, permitted the following pleas to be filed together: "The general issue, denial of debt or contract sued on, tender in whole or in part, statute of limitations, set-off, plene administravit, infancy, payment, accord and satisfaction, release, not guilty, a denial of plaintiff's property in the thing injured, leave and license, son assault demesne, performance, jurisdiction in libel, slander and other actions, and any other pleas which by law are allowed to be pleaded together." That section was repealed by Chapter 230, General Laws of Miss. 1948. (Hn 1) That statute abolished separate pleas theretofore permitted in the circuit court and requires these to be embodied in an answer. But it also provides that ". . . the answer may state as many defenses, whether consistent or not and whether heretofore made by plea in abatement or plea in bar, as in law or in fact, the defendant may have to the declaration or to any material part or parts thereof." Thus it is seen a plea denying the debt, in whole or in part, of set-off and of accord and satisfaction can be pleaded together.

(Hn 2) Said Chapter 230 also provides that if matter which heretofore could constitute a plea be set up in such a manner as to be "clearly distinct and readily separable and go to the entire cause of action," it may be separately heard and disposed of before the principal trial of the cause, in the discretion of the court. But that was not the action taken by the court. The adopted procedure did not leave to be tried the issue whether the itemized denied items were owing by the defendant. The court struck that defense from the case. The issue of accord and satisfaction was decided against Sherman. He then had the right to have the other issues raised by his pleas passed upon. Section 1, said Chapter 230, provides, "And if the defendant fail to sustain the matter of the plea so heard, upon which matter, after motion made, he shall have the burden both as to the law and the facts, he shall nevertheless then have the right to go on to trial upon his answer as a whole."

Also, defendant was denied the right to produce evidence to sustain his denial that plaintiff had sold and delivered him the various items appearing in the itemized statement of charges of Stewart against him. The following instruction was given the jury: "The court further instructs the jury for plaintiff, The Stewart Company, that the sole question involved in this suit is whether or not the Stewart Company agreed and did accept the $200.00 check in full payment of a $833.21 account, and unless the defendant, L.W. Sherman, Jr., has proven to your satisfaction by a preponderance of the evidence, that Mrs. Stewart and her son did accept the $200.00 check in full payment of this account, then in that event it will be your sworn duty to find for the plaintiff, the Stewart Company, for the amount sued for which is $833.21." That instruction told the jury defendant owed the plaintiff $833.21, and unless plaintiff accepted the $200.00 payment in full satisfaction and settlement of that amount, it would find for the plaintiff. (Hn 3) Even though only the issue of accord and satisfaction was being tried, yet the true amount owing by defendant was an important relevant fact bearing upon whether plaintiff would accept and defendant would pay $200.00 in settlement of the amount owing. For instance, if that was only $250.00, say, and especially if part of that was in dispute, a jury naturally would more readily find the payment was in settlement of the amount owing by defendant, than it would find that payment of $200.00 was in full settlement of $833.21. In other words, testimony as to the amount owing was competent on the issue of accord and satisfaction. That being true, it would have been better to have submitted for one trial all the issues made under the pleadings in this case, although the question of separate trials is a question largely, if not entirely, within the discretion of the trial judge. Section 1, Chapter 230, Laws of Miss. 1948; Christopher v. Brown, 211 Miss. 322, 51 So.2d 579.

Reversed and remanded.

Kyle, Holmes, Arrington and Ethridge, JJ., concur.

SHERMAN v. STEWART.

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