Opinion
4 Div. 536.
June 18, 1931. Rehearing Denied October 15, 1931.
Appeal from Circuit Court, Covington County; Emmet S. Thigpen, Judge.
A. R. Powell, of Andalusia, for appellant.
There was no inconsistency or repugnancy between the amendment, seeking to set up accord and satisfaction, and the original bill. It was filed as a matter of right, and the striking thereof was manifest error. Code 1923, § 6558; Ex parte Delpey, 188 Ala. 449, 66 So. 22; McCrory v. Guyton, 164 Ala. 365, 51 So. 312; Neal v. Williams, 168 Ala. 310, 53 So. 94; Martin v. Baines, 217 Ala. 326, 116 So. 341; Fellows v. Burkett, 219 Ala. 601, 122 So. 808. After appellee knew the amount of the payments was in dispute, he accepted checks with notations thereon showing that they were offered in full settlement of the payments indicated. This operated as an accord and satisfaction. Ex parte Southern Cotton Oil Co., 207 Ala. 704, 93 So. 662; Code 1923, §§ 5640-5642; R. C. L. 194, § 30; Hand Lbr. Co. v. Hall, 147 Ala. 561, 41 So. 78; Brown v. Lowndes Co., 201 Ala. 437, 78 So. 815; Arnold v. Gibson, 216 Ala. 314, 113 So. 25. Complainant was entitled as matter of right to amend his bill; an order of court allowing it not being necessary. Both parties were then entitled to take additional testimony without special application therefor. The only restriction upon this absolute right is that the court may impose terms not extending beyond the payment of all costs. Code 1923, §§ 6558, 6560; Winston v. Mitchell, 93 Ala. 554, 9 So. 551.
Powell, Albritton Albritton, of Andalusia, for appellee.
The proof fails to establish the terms of the contract as averred in the bill. The testimony shows the mortgage and notes were drawn in accordance with the contract. Complainant claims under the deed executed by respondent and Brawner. His payments were on the notes and mortgage. This was an acknowledgment of validity, and he became bound thereby. The testimony fails to establish accord and satisfaction, and the amendment to the bill was properly stricken. Code 1923, § 7721; McDonald v. Harris, 131 Ala. 359, 31 So. 548; Moore v. Moore, 212 Ala. 686, 103 So. 892; Stickney v. Moore, 108 Ala. 590, 19 So. 76; Caldwell v. Dunklin, 65 Ala. 461; Billingsley v. Billingsley, 37 Ala. 429; Branch Bank of Mobile v. Strother, 15 Ala. 51; Mooney v. Walter, 69 Ala. 75; Ross v. N.E. M. S. Co., 101 Ala. 362, 13 So. 564; Haralson v. Whitcomb, 200 Ala. 165, 75 So. 913; Sims, Ch. Pr. § 643; Winfield Lbr. Co. v. So. Mfg. Co., 209 Ala. 614, 96 So. 756; 23 R. C. L. 367; Eureka Co. v. Edwards, 80 Ala. 250; Dixon Co. v. Higgins, 82 Ala. 286, 2 So. 289; Beatty v. Brown, 85 Ala. 209, 4 So. 609; Hodges v. Tenn. Imp. Co., 123 Ala. 572, 26 So. 490; Hand Lbr. Co. v. Hall, 147 Ala. 561, 41 So. 78; May v. Robinson, 221 Ala. 570, 130 So. 81; Brock v. Clio Banking Co., 207 Ala. 404, 92 So. 805.
On the former appeal it was held that, if the delivery of the notes and mortgage in the first instance was without the assent of the maker, their delivery had been ratified as expressive of the contract between the parties, and complainant, who succeeded to the rights of the mortgagor, was not in position to dispute the delivery or repudiate the notes and mortgage as representing the true indebtedness between the parties. May v. Robinson, 221 Ala. 570, 130 So. 81.
If this holding was sound, and it is not now questioned by the appellant, there was no basis for a bona fide dispute between the parties as to the amount of the indebtedness, and, in the absence of such dispute or the giving of a receipt or release in writing by the creditor, the payment or tender of less than the sum in fact due does not constitute accord and satisfaction. Ex parte Southern Cotton Oil Co., 207 Ala. 704, 93 So. 662; J. H. Arnold Co. v. Gibson, 216 Ala. 314, 113 So. 25; Craft v. Standard Accident Ins. Co., 220 Ala. 6, 123 So. 271; Hodges v. Tennessee Implement Co., 123 Ala. 572, 26 So. 490.
In the light of the foregoing principles, the evidence on file and now in the record is not sufficient to sustain the last amendment to the bill setting up accord and satisfaction as an additional ground for relief. This was one of the grounds of the motion to strike the amendment, and, in the absence of an application for continuance to give the complainant an opportunity to take further testimony, the court will not be put in error for granting the motion and striking the amendment.
While the statute provides that "amendments to bills in equity may be filed as a matter of right at any time before final decree, by striking out, or adding new parties, or to meet any state of evidence which will authorize relief; and amendments to answers may be filed as of right at any time before final decree, so as to set up any matter of defense; and if an amendment be filed at the hearing, to bill or answer, the opposite party shall be entitled to a continuance as a matter of right if the amendment requires the taking of additional testimony, and in this event, both parties shall have the right to take additional testimony without a special application," etc. Code of 1923, § 6558. (Italics supplied.) It does not entitle the party making the amendment to a continuance as a matter of right, or require that the court grant such continuance to the opposite party ex mero motu.
The decree of the circuit court appears free from reversible error.
Affirmed.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.