Yazoo & Mississippi Valley Railroad v. Fulton

Citations

• 71 Miss. 385

Syllabus

<p>1. Accord and Satisfaction. Performance. Promise. Intent.</p> <p>While a promise to perform_may be accepted as satisfaction of an accord, it will not be so held if the parties contemplated immediate performance, as by payment of the sum agreed. Whitney v. Cook, 53 Miss., 551.</p> <p>2. «Same. Failure to perform. Case.</p> <p>Where plaintiff agrees to accept a sum in compromise of a suit, and gives a receipt therefor as actually paid, on defendant’s promise to remit, but the latter, who has been garnished in another state in respect to his debt to plaintiff, does not remit, but answers the garnishment admitting an indebtedness, for which judgment is entered, there is no satisfaction of the accord, and the right of plaintiff' to recover on his original demand is not affected.</p> <p>3. (tAjsnishment. Judgment againet garniehee. fyffect on the debt.</p> <p>A judgment against a garnishee does not operate as a transfer to the garnishing creditor of the debt owing by the garnishee; nor, until payment thereof, is it a bar to a suit against the garnishee by the defendant, his creditor. Kellogg v. Freeman, 50 Miss., 127, criticised.</p> <p>4. xUition. Oarniehnent of defendant. Judgment. Stay of execution.</p> <p>A creditor may proceed to judgment against his debtor, notwithstanding the latter has been garnished in respect to the debt sued for, but, this being shown, the judgment should require execution to be stayed for the amount the defendant has been or is sought to be charged as garnishee</p>