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T. C. COOK AND MACK HICKS, d/b/a COOK'S CROSSING AUTO CENTER v. JACK BOWIE

MARCH 07, 1984

T. C. COOK AND MACK HICKS, d/b/a COOK'S CROSSING AUTO CENTER
v.
JACK BOWIE, KAYE BOWIE, AND MICHAEL HANLEY, a/k/a JERRY LYNN PARNELL, d/b/a HANLEY'S USED CARS



BEFORE ROY NOBLE LEE, PRATHER AND SULLIVAN

SULLIVAN, JUSTICE, FOR THE COURT:

This is an appeal from the Circuit Court of Choctaw County, Mississippi, from a final judgment on a jury verdict in favor of the defendants Jack Bowie, Kaye Bowie and Michael Hanley, in an action by the appellants to recover two dishonored negotiable instruments.

There are three assignments of error, to-wit:

 (1) That the lower court erred in failing to grant appellants a peremptory instruction on the issue of liability and damages;

 (2) That the trial court erred in allowing appellees' instruction number 3 as it improperly defined the burden of proof required of the appellees in order to establish accord and satisfaction; and

 (3) That the verdict of the jury was against the overwhelming weight of the evidence.

 The parties are used car dealers who at least on three occasions did business with one another, and it is from these transactions that the controversy arose. The sole defense raised at the trial was accord and satisfaction.

 In Lovorn v. Iron Wood Products Corporation, 352 So. 2d 196, 197 (Miss. 1978), this Court stated that the four basic elements of an accord and satisfaction are,

 (1) something of value offered in full satisfaction of demand; (2) accompanied by acts and declarations as amount to a condition that if the thing offered is accepted, it is accepted in satisfaction; (3) the party offered the thing of value is bound to understand that if he takes it, he takes subject to such conditions; and (4) the party actually does accept the item.

 In Roberts v. Finger, 227 Miss. 671, 577-78, 86 So. 2d 463, 465 (1956), this Court held that,

 One of the essential elements of an accord and satisfaction is an agreement, or a meeting of the minds of the parties. This agreement must have all the essentials of a contract and may be express, or implied from the circumstances.

 Simmons v. Langston, 241 Miss. 36, 128 So. 2d 749 (1961), is a case factually similar to this cause. There the defense was also accord and satisfaction and was also based solely upon the testimony of one of the defendants, unsupported by any documentation. The Simmons Court stated:

 [T]he fact that delivery of encumbered property to the creditor is made in discharge of the old debt must be made known to the creditor in some unmistakable manner.

 241 Miss. at 39, 128 So. 2d at 750. The Court then held that the testimony did not indicate the parties had agreed to an accord and satisfaction and that the trial judge ...


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