Opinion
Decided March 29, 1926.
Accord and satisfaction — Burden of proof on defendant — Contract for advertising space — Error to direct verdict without requiring proof of defense pleaded.
1. Defendant has burden of proving defense of accord and satisfaction and settlement.
2. In action on contracts for advertising space, direction of verdict for defendant at close of plaintiff's case, without requiring proof of accord and satisfaction pleaded by defendant, held prejudicial error.
ERROR: Court of Appeals for Hamilton county.
Mr. George W. Welch and Mr. Fyffe Chambers, for plaintiff in error.
Messrs. Bettman, Riesenberg, Cohen Steltenpohl, for defendant in error.
Plaintiff in error, Philip Morton, brought suit against the defendant in error, the Siebler Clothing Company, seeking to recover for sums due under six contracts for display advertising. The contracts were to cover a period of thirty-six months.
The petition gave certain credits by way of payment, and claimed a large balance due.
The defendant, in addition to a general denial, denying any indebtedness, claimed an accord and satisfaction and release from the contracts by the payment of the sum of $2,600, in the form of cash and notes, and alleged an acceptance thereof in full satisfaction and discharge of the plaintiff's claims under the contracts. This allegation was denied by the reply.
At the trial of the case, plaintiff introduced evidence showing the entering into of the six contracts, a performance by the plaintiff of the contract for twelve months, and the accrual of the payments therefor, which were unpaid, and the efforts to collect the same; introduced evidence tending to show the effort of the clothing company to be relieved from the contract on account of financial distress, evidence as to several conferences between the parties and their counsel and failure to come to an agreement for the payment of the accrued amounts due under the contracts, and release from further liability under the contracts.
There was evidence that plaintiff undertook to relieve the clothing company by re-letting the advertising space to other parties. There was evidence tending to show that an agreement of settlement was tendered by the plaintiff, which was not accepted until thirty days had passed, at which time plaintiff had receded from his proposition of settlement. There is evidence tending to show that all the conferences were in an endeavor to get settlement of the accrued indebtedness, as well as relief from future liability.
On cross-examination by counsel for the defense, it was shown that on May 7, 1921, a check for $1,000 and four notes for $400 each, indorsed by a Mr. Lang of New York, were mailed to plaintiff, accompanied by a letter, which letter recited that the inclosed check and notes were in full payment of all claims under the contracts and in full release from further liability thereunder. This letter was signed by the attorneys for the clothing company. Some days later the check was deposited for collection and the notes were presented and paid when due.
It also appears in the evidence that a letter dated June 24, 1921, from Gilbert Bettman, attorney for the clothing company, was addressed to Melville Snowden, care of the Morton Company, which tended to show there were still negotiations with reference to the matter in question.
Plaintiff testified that the check and notes were received by him and credited to the payment of the claims and amounts then due, and were only received in settlement thereof and had nothing to do with the rights under the contracts for the two succeeding years. The claim of the defense being accord and satisfaction and settlement, it was incumbent upon the defendant to show the same.
Notwithstanding all of the evidence adduced, at the close of plaintiff's evidence, without requiring any defense whatever to be introduced, the trial court, on motion, granted a judgment in favor of the defense. Enough has been said to show that this was clearly prejudicial error. The defendant should have been required to put in its defense, and the case should have been submitted to the jury.
The judgment will be reversed, and the cause remanded for further proceedings according to law.
Judgment reversed.
BUCHWALTER, P.J., and CUSHING, J., concur.