C. & O. Oil Co., Inc. v. Curtis Funeral Home, Inc

• Decision Date: 02 October 1934
• Citation: 175 A. 9,106 Vt. 342
• Parties: C. & O. OIL CO., INC. v. CURTIS FUNERAL HOME, INC
• Court: Vermont Supreme Court

175 A. 9

106 Vt. 342

C. & O. OIL CO., INC. v. CURTIS FUNERAL HOME, INC

Supreme Court of Vermont

October 2, 1934

May Term, 1934.

Accord and Satisfaction---Words on Check Indicating Possible Accord and Satisfaction To Be Construed with Accompanying Words---Construction of Findings To Support Judgment---Conduct Inconsistent with Claim of Accord and Satisfaction.

1. On question whether check containing words, "Payment in full" or "In full to date," was intended as accord and satisfaction of all demands defendant then owed plaintiff for gasoline purchased, such words must be considered in connection with accompanying words which accurately described quantity and price of last lot of gas previously delivered.

2. If words on check for $36, given by purchaser of gasoline to seller thereof, after last of eight deliveries of gasoline by seller to purchaser, were "Payment in full. Gals. 200 oil---$36.00," last delivery thereof being of 200 gallons at price of $36, held that only reasonable conclusion therefrom is that check was intended to pay for last delivery only.

3. Where findings as to what appeared on such check, used both expressions, "Payment in full" and "In full to date," and first expression would support judgment obtained, such language will be adopted by Supreme Court to sustain judgment.

4. Conduct of purchaser of gasoline after giving check for $36 to seller, claimed by purchaser to have been intended as accord and satisfaction for balance of indebtedness on number of deliveries of gasoline to date of check, held inconsistent with such claim, and to render it without merit.

ACTION OF CONTRACT. Plea, accord and satisfaction. Trial by Orleans municipal court, Frank C. Williams, Municipal Judge presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Pierce & Miles for the defendant.

Lee E. Emerson for the plaintiff.

Present POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

SLACK

This action is to recover a claimed balance for gasoline plaintiff sold and delivered to defendant. Plea, accord and satisfaction. Trial by court. On the facts found plaintiff had judgment to which defendant excepted.

The defendant contends that the findings show an accord and satisfaction as matter of law and consequently that it was entitled to a judgment. This is the only exception relied upon. The material findings are these: The plaintiff is a distributor of gasoline. It had an agent, Hall, in Newport Vermont, who had authority to sell gas and collect pay for it. The plaintiff's place of business is in that city and the transactions involved were had with Hall. Commencing November 22, 1928, defendant had eight lots of gas prior to November, 7, 1929, the last of which was the two hundred gallons delivered October 28, 1929, price $ 36. The first three and last three lots it paid for by check. It claimed it paid Hall cash for the other two lots, which together amounted to $ 180. This was denied by plaintiff. Plaintiff also claimed that there was an unpaid balance of $ 5 due on the second lot. This was denied by defendant. This was the situation on November 7, 1929, when defendant sent plaintiff a check for $ 36. This check was written in green ink, as were the other checks above mentioned. In the upper left-hand corner were the words, "Payment in full" or "In full to date," both expressions appear in the findings, and just below these words, whichever were used, were the words "Gals. 200 oil-$ 36.00." Plaintiff received and cashed this check, and gave defendant credit for it under date of November 30, 1929. When it was returned to defendant three black ink lines had been drawn through the words "Payment in full" or "in full to date" and to their right had been inserted, in black ink, the words "Bal. due." This had been done by plaintiff or one of its employees. ...