The opinion
George Rose Smith, J. (concurring). In the usual ease an accord and satisfaction is pleaded by the debtor as a defense to the creditor’s suit upon the original obligation. In that situation it is familiar law that the debtor’s original obligation is not discharged unless the subsequent agreement of accord has been fully executed, or, in other words, has been satisfied. Here, however, it is the creditor who is suing upon the agreement of accord, and I think the majority are in error in holding that in this situation a satisfaction of the accord must be proved.
The fallacy is readily apparent from the majority opinion itself. It is said that “we have reached the conclusion that appellant cannot prevail for the reason that there was no satisfaction. If the check for $1,600 had been cashed by appellant we would agree that an accord and satisfaction had been reached, but snch is not the situation.” Thus the appellant is being told that the reason it cannot sue upon the check is that it failed to cash the check and collect its money. Needless to say, had the appellant succeeded in collecting its claim it would not have brought the present action.
Despite my disagreement with the majority’s reasoning I think the judgment should be affirmed. An agreement of accord is a contract and, like any other contract, must be supported by a consideration. Levy v. Very, 12 Ark. 148 ; DeSoto Life Ins. Co. v. Jeffett, 210 Ark. 371 , 196 S. W. 2d 243 ; Rest., Contracts, § 417. If the accord is a valid contract the creditor may, as the Restatement points out, sue upon the accord rather than upon the debtor’s original obligation. That is what the appellant did in the case at bar, basing its complaint upon the check rather than upon the original transaction by which the appellee was assertedly overpaid for his crop of oats.
The jury’s verdict for the defendant necessarily means that the jury accepted Yohe’s version of the original agreement, for under the court’s instructions there is no other basis on which the jury could have found for Yohe. Hence the jury found that Yohe was entitled to receive eighty-five cents a bushel for certified oats, regardless of the exact grade of certification. This being true, Yohe owed the appellant absolutely nothing when he delivered the check now sued upon, for he was justly entitled to every cent that he had received. There was therefore no consideration whatever for the agreement of accord, and since the check has not passed into the hands of a holder in due course the absence of consideration is a complete defense to the plaintiff’s claim.