Whitt v. Leath

ANDERSON, O. J.

The sole question in this case hinges on the fact as to whether or not there was a past-due indebtedness on the mortgage at the time of the advertised sale under the power, and which said sale the bill seeks to enjoin, and this must be solved by determining whether the partial payment made upon the first three notes amounted to an accord and satisfaction, or that they were canceled and surrendered as the result of a miscalculation or error in omitting some of the interest on same, or one of them. There was no dispute over the amount due, and this was just a case where the complainant desired to pay said first three-notes, and the respondent was willing to j accept same less the unmatured interest, and in fixing the amount overlooked the fact that some interest on one of them had matured when the settlement was made. It may be doubtful if the complainant’s version of the transaction amounted to an accord and satisfaction. Ex parte Southern Cotton Oil Co., 207 Ala. 704 , 93 So. 662 . But, if it did, the ■respondent’s version of the affair showed no accord and satisfaction, but that the settlement and surrender of the notes was accompanied by an error or mistake in omitting some of the matured interest in calculating the total amount due on said three notes, and he is corroborated by subsequent acts and circumstances.

The case of Brown v. Lowndes County, 201 Ala. 437 , 78 So. 815 , is not in conflict with, and does not militate against, the present holding. There, there was an agreement to consolidate outstanding warrants into one in lieu thereof, and which said warrant was accepted in full and cashed by Brown, and there does not seem to have been a mistake *311 or error as here. See, also, the opinion of Justice Thomas, the author of the opinion, in his special concurrence in the Southern Cotton Oil Co. Case, supra.

The trial court did not err in denying the injunction, and to this extent the decree of the circuit court is affirmed.

We do not think, however, that interest on the fourth and fifth notes, after the tender, should have been included^ in ascertaining the amount due on the mortgage. Notwithstanding the first three had not been paid in full, the obligation was made separable by several separate notes, and the complainant had the right to take up the other two which he offered to pay, and to demand the surrender of same. 30 Cyc. p. 1228.

The decree of the circuit court is affirmed in so far as it holds that the first three notes had not been paid in full and in denying the injunction, but it is reversed in so far as it charges the complainant with interest on the two notes he offered to pay after said offer and tender.

Affirmed in part, and reversed and remanded in part; cost of appeal taxed against appellee.

SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.