Opinion
August Term, 1857.
Where a judgment rendered before a justice of the peace is appealed from, and the parties, by consent, withdraw the appeal, the judgment is restored.
The payment of a lesser sum that the amount claimed, where the amount in question is unascertained, will support the plea of accord and satisfaction, if received in discharge of such claim.
THIS was an action of DEBT on a former judgment, tried before ELLIS, Judge, at the Fall Term, 1856, of Jackson Superior Court, and brought to this Court by direct appeal from the judgment of a magistrate.
The plaintiff offered, in evidence, the former judgment sued on, from which the defendant had appealed, and upon which was an endorsement of such appeal, and subsequently a withdrawal of the appeal by the appellant. One Wilson, the justice, who tried the case, testified that after the appeal was taken, and as he was carrying the papers to court, the parties came to him, when the appellant (the defendant) told him not to return the appeal to court, but to hand it back to the officer, which he did. He understood from them that they intended to settle the matter without its going into court.
One Henderson, for the defendant, swore the parties agreed to withdraw the appeal and refer the case to arbitrators; that the parties met to have the matter submitted to referees, but that the persons selected did not meet. That the defendant borrowed a dollar from him, which he handed to the plaintiff. who, on receiving it, seemed satisfied. He understood from the parties that they had settled the matter, and all seemed satisfied.
A credit of one dollar was endorsed on the judgment, and was admitted on the trial below.
Upon these facts, the plaintiff insisted on his right to recover the amount of the judgment, deducting the sum of one dollar.
The defendant contended that the judgment had been vacated by the acts of the parties, and that there was an accord and satisfaction proved in the case.
The court charged the jury that the withdrawal of the appeal, restored the judgment. He charged also, that there was evidence of a payment of one dollar on the judgment, but that there was no evidence of an accord and satisfaction of the judgment, and that the plaintiff was entitled to recover for the balance, after deducting one dollar.
Verdict for the plaintiff, and judgment accordingly. Defendant appealed.
J. W. Woodfin, for the plaintiff.
Baxter, for the defendant.
There is error. The action is brought on a former judgment. The magistrate, who gave the judgment, proved that, after it was rendered, the defendant appealed to the Superior Court, and while he was on his way to return the papers to court he was met by the parties, when the appellant told him not to return them to court. He understood from the parties, that they intended to settle the matter without going to court. Another witness testified that the parties agreed to withdraw the appeal and submit the matter to referees; that the referees did not meet, and the defendant borrowed a dollar from him; that plaintiff took it and seemed satisfied.
The jury were properly instructed that the withdrawal of the appeal, before the cause was returned by the magistrate to the Superior Court, restored the judgment to its original force. Parties can, before an appeal from a magistrate reaches the appellate court, stop the appeal, and in doing so the judgment stands, as if no appeal had been taken.
But we do not agree with his Honor, that there was not proper evidence of an accord and satisfaction. We think there was, and that the jury ought to have been so instructed. The parties were engaged in a law-suit, which might prove a troublesome, and expensive one, and while pondering on it, the defendant borrowed from the witness a dollar, which he handed to the plaintiff, who took it, and they both seemed satisfied, and said they had settled it. What was the intention of the parties in this transfer of the dollar, was a matter of enquiry for the jury. The payment of a less sum than that claimed, will support the plea of accord and satisfaction where the amount is unascertained and in dispute, if it is received in discharge of the amount claimed. Pinnell's case, 5 Co. Rep. 117; Smith v. Brown, 3 Hawks' Rep. 580; Stark, on Ev. 2 v. pt. 1 in Note; State Bank v. Littlejohn, 1 Dev. and Bat. 565.
PER CURIAM. Judgment reversed, and a venire de novo awarded.