Bay City Const. Co., Inc. v. Hayes

• Decision Date: 20 August 1993
• Citation: 624 So.2d 1031
• Parties: BAY CITY CONSTRUCTION COMPANY, INC. v. Henry HAYES, Sr. 1912009.
• Court: Alabama Supreme Court

Page 1031

624 So.2d 1031

BAY CITY CONSTRUCTION COMPANY, INC. v. Henry HAYES, Sr.

1912009.

Supreme Court of Alabama.

Aug. 20, 1993.

Thomas R. McAlpine of Sintz, Campbell, Duke & Taylor, Mobile, for appellant.

Vaughan Drinkard, Jr. and C. Gary Hicks of Drinkard, Ulmer, Hicks & Leon, Mobile, for appellee.

ADAMS, Justice.

Bay City Construction Company, Inc., ("Bay City"), appeals from a judgment based on a jury verdict awarding damages to Henry Hayes, Sr., on a breach of contract claim. We affirm.

In October 1989, Bay City offered Hayes a job supervising a construction project on a naval base in Charleston, South Carolina. As part of the agreement, Hayes was to receive $15 per hour, expenses, and 20% of the profit from the project. Bay City subsequently entered into a written agreement with the Federal Government, and that agreement incorporated a statement of Hayes's duties.

Before the project in South Carolina was completed, Bay City requested that Hayes supervise a construction project in Alabama. Hayes agreed to supervise the project in Alabama, with the understanding that he was still to receive 20% of the profit from the South Carolina job, as previously agreed. Prior to the completion of both jobs, Hayes entered into a rehabilitation program and was thus unable to supervise the project in Alabama to completion.

In December 1990, Hayes met with Bay City to discuss the percentage of the profits he was to receive from the South Carolina project. Bay City tendered Hayes a $19,984.16 check, telling him that the total profit on the South Carolina project was about $79,000, which was lower than it had anticipated. After that, Hayes received information indicating that Bay City's actual profit on the project was $780,000.

In January 1991, Hayes sued Bay City, alleging breach of contract and fraud. Bay City moved for a summary judgment. The court denied the motion as to the breach of contract, but entered summary judgment as to the fraud count. A jury awarded Hayes $140,050.20, and the court entered a judgment in accordance with that verdict. Bay City appealed.

I.

Bay City argues that Hayes's claim was barred under the theory of accord and satisfaction. We disagree.

We stated in Leisure American Resorts, Inc. v. Carbine Constr. Co., 577 So.2d 409, 411 (Ala.1990):

"An accord and satisfaction is an agreement reached between competent parties regarding payment of a debt the amount of which is in dispute. Limbaugh v. Merrill Lynch, Pierce, Fenner & Smith, 732 F.2d 859, 861 (11th Cir.1984); O'Neal v. O'Neal, 284 Ala. 661, 227 So.2d 430 (1969). There can be no accord and satisfaction 'without the intentional relinquishment of a known right.' Id. at 663, 227 So.2d at 431.

"Like any other contract, a valid accord and satisfaction requires consideration and a meeting of the minds regarding the subject matter. Bank Indep. v. Byars, 538 So.2d 432, 435 (Ala.1988); Farmers & Merchants Bank of Centre v. Hancock, 506 So.2d 305, 310 (Ala.1987); Austin v. Cox, 492 So.2d 1021, 1022 (Ala.1986); Ray v. Alabama Central Credit Union, 472 So.2d 1012, 1014 (Ala.1985).

"Whether the parties have reached an accord and satisfaction is almost always a question for the jury. Austin, 492 So.2d at 1022; Farmers & Merchants Bank of Centre v. Hancock, 506 So.2d 305 (Ala.1987); Stephenson Brick Co. v. Bessemer Eng'g & Constr. Co., 218 Ala. 325, 118 So. 570 (1928); W.B. Davis Hosiery Mill, Inc. v. Word Lumber Co., 49 Ala. App. 492, 273 So.2d 469 (1972), cert. denied, 290 Ala. 372, 273 So.2d 474 (1973)."

The record in this case does not reveal a dispute as to the amount due to Hayes. According to the terms of the agreement, Hayes was to receive $15 per hour, expenses, and 20% of the profit on the South Carolina project. When Bay City tendered the $19,984.16 check to Hayes, he expressed reservations about whether the amount of the check was correct; but, he said, because of his outstanding financial obligations, he accepted the check. Hayes's reservations in accepting the check do not evidence a dispute concerning the amount due, as Bay City contends. The dispute is whether Bay City accurately represented that the amount Hayes received was 20% of Bay City's profit from the South Carolina project. The jury could have found from the evidence that Hayes and Bay City had not entered an accord and satisfaction.

II.

Bay City argues that the contract between it and Hayes violated the Statute of Frauds and was therefore void. We disagree.

Ala.Code 1975, § 8-9-2, provides:

"In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:

"(1) Every agreement which, by its terms, is not to be performed within one year from the making thereof ..."

This Court stated in Land v. Cooper, 250 Ala. 271, 276, 34 So.2d 313, 316 (1948):

"In [W.P. Brown & Sons Lumber Co. v. Rattray, 238 Ala. 406, 192 So. 851 (1939) ], this court approved the statement from 25 R.C.L. 454, § 29, that to bring a contract within the operation of this clause of the statute there must be an express and specific agreement that it is 'not to be performed within the space of a year; if the thing may be performed within the year, it is not within the statute, a restricted construction being given to the statute on account of the negative form of the provision. A contract is not brought within the statute by the fact that the full performance within a year is highly improbable, nor by the fact that the parties may not have expected that the contract would be performed within the year. This is said to be true if there is a possibility of its being performed within a year, and there is no stipulation that it shall not be so performed.' (238 Ala. [at] 410, 192 So....