Opinion
Dissenting opinion.
For majority opinion see 237 S.W.2d 41.
GRIFFIN SMITH, Chief Justice (dissenting).
When the decree was reversed January 22d on a majority finding that an accord had been reached between the parties, with satisfaction, the dissents of the Chief Justice, Mr. Justice McFaddin, and Mr. Justice George Rose Smith were noted. In expressing disagreement the Chief Justice said:
'The appeal is being disposed of on the ground of accord and satisfaction when most of the testimony shows that nobody was satisfied and that accord did not assume the dignity of a whisper. Clear inferences to be drawn from a case heard originally by one of the State's most careful Chancellors is the Denemark [whose wife operates a string of racehorses] had more money than business sense and appellants' chief concern [of the Denemarks] was to implement their contact with the race track racket as expeditiously as possible; hence their urge was predicated primarily upon speed to the full extent that dollars could produce that result. Changes in plans were made from time to time, but always there was the cost-plus consideration; and the final reckoning required payment of actual construction outlay with ten percent to the contractor.
'It is urged that sub-contracting--such as wiring, plumbing, and specialized work--could not be included for commission purposes. Certainly it was contemplated that Mooney would be paid over-all on the basis of ten percent of the finished product; and, while a few items possibly amounting to $3,000 [may have been] erroneusly included and should have been added to deductions made by the Chancellor, it is not necessary in this dissent to burden the record with a discussion regarding them, since, by a process of reasoning satisfactory to the majority, there has been a finding that what appears to me to have been discord between the parties was an amiable adjustment sustained by a preponderance of the evidence'.
On rehearing the majority's decision that an accord had been reached and that payments mentioned satisfied the entire obligation was withdrawn, and on April 2d, 1951, there was a substituted opinion. 237 S.W.2d 41. A reference to the opinion printed in The Law Reporter January 22, and that appearing April 9, 1951, will disclose the majority's action in receding from the theory of accord and satisfaction and finding that the Chancellor was not sustained by a preponderance of the evidence. Again the same three justices dissented.
Briefly, the facts are that the Chancellor heard many of the witnesses, patiently listened to their direct testimony and cross-examination, and concluded that Denemark and his witnesses were not to be believed regarding some of the transactions. Certainly there were conflicting factual issues, and in the final analysis the trial court had to accept the testimony thought to be credible and reject what appeared most unreasonable. With relatively slight variations mentioned in my dissent of January 22d it seems to me that by far the stronger case was made by Mooney, hence I am unable to fathom the mathematical and factual processes by which this Court's majority reached the conclusion that the decree was erroneous in all of its aspects not clearly favorable to the race track operators whose need for speed in construction patently outbalanced their financial judgments.