Call of Houston, Inc. v. Mulvey

• Decision Date: 09 February 1961
• Docket Number: No. 13602,13602
• Citation: 343 S.W.2d 522
• Parties: CALL OF HOUSTON, INC., Appellant, v. Robert E. MULVEY, Appellee.
• Court: Texas Court of Appeals

Page 522

343 S.W.2d 522

CALL OF HOUSTON, INC., Appellant, v. Robert E. MULVEY, Appellee.

No. 13602.

Court of Civil Appeals of Texas, Houston.

Feb. 9, 1961.

Rehearing Denied March 2, 1961.

Franklin R. Navarro, B. Rice Aston, Houston, for appellant.

William G. Fox, Beaumont, for appellee.

COLEMAN, Justice.

Robert E. Mulvey, appellee herein brought suit against Call of Houston, Inc. appellant, for breach of an employment contract. Appellant filed a cross-action for negligence in performance of employment. The trial was to a jury. Judgment was for plaintiff, from which appeal was duly perfected to this Court.

On August 1, 1956, appellant, the owner and operator of a radio broadcasting company known as KCOH, entered into a written contract with appellee by which it employed him company for a compensation of of said company for a compensation of $150 per week plus certain commissions. The contract contained no termination date, but provided as follows:

'The above agreement between the Call of Houston, Inc. (KCOH) and Robert E. Mulvey, becomes effective August 1, 1956 with a termination of contract to be given by either party on a written (90) ninety day notice. In the event both parties desire a shorter notice this will have to be done by mutual consent.'

Shortly before March 14, 1957, appellant became dissatisfied with appellee's work as commercial manager of the station. After the parties had conferred over a period of days concerning the possibility that appellee would remain in appellant's employ as a salesman, the parties determined that they would be unable to reach an agreement and each requested the other to set a date for the termination of the contract. On March 14, 1957, appellant wrote a memorandum to appellee, which appears to have reached appellee some days afterward, reading as follows:

'To Bob Mulvey

'Reference to * 05r

'Date March 14, 1957

'This is formal notice termination of employment at KCOH as of this date March 14th in accordance with contractural agreement. Exact termination date will be determined as we discussed upon your securing another position. However because jobs are plentiful I think a termination should be within a 30 day period. The purpose of this formal notice is to have record of starting date of termination.

'Radio Station KCOH

'/s/ R. C. Meeker,

'Robert C. Meeker,

'President.'

Appellee continued to work for approximately one month, confining his duties to that of salesman. On April 13, 1957 appellee was presented a check in the amount of $90.36, the amount of weekly salary due him less deductible income tax, etc., on which was noted the words 'Account in Full.' On the same date another check dated April 13, in the amount of $20.85 was given to appellee in payment of automobile expenses, which also bore on the back notation 'Account in Full.' Appellee testified that he noticed the notations but that he considered that they referred to payment of the account in full for the time which he had actually worked. After receipt of these checks, appellee no longer reported for work, and, after cashing the checks, wrote appellant a letter in which he stated that he intended to hold appellant to the ninety-day notice provision of the contract.

The court's charge as submitted to the jury contained only one issue pertinent to the assigned points of error, which reads as follows:

'Special Issue No. 1----

'Do you find from a preponderance of the evidence that on or about the 14th day of March, 1957, the Plaintiff, Robert E. Mulvey, and the Defendant, Call of Houston, Inc., mutually agreed to waive the provision in Plaintiff's contract of employment calling for a 90 day notice of termination and to substitute therefor an agreement to terminate upon 30 days notice?'

to which the jury answered: 'We do not.'

Appellant did not object to the charge of the court, but did request certain special issues, which were refused by the trial court.

Appellant first complains of the action of the trial court in refusing his motion for instructed verdict in which he alleged that the uncontroverted evidence established his defense of accord and satisfaction. 1 Tex.Jur.2d, Accord and Satisfaction, Sec. 1, pp. 207, 208, defines 'Accord and Satisfaction' as follows:

'An accord and satisfaction may be defined as a method of discharging a contract or settling a cause of action, arising from either a contract or a tort, by substituting an agreement for the satisfaction thereof and the execution of such substituted agreement. An accord is an agreement whereby one of the parties undertakes to give or perform, and the other to accept, in satisfaction of a claim, liquidated or in dispute, and arising either from contract or tort, something other than or different from what the claimant is, or considers himself, entitled to. A satisfaction is the execution or performance of such an agreement.'

The same authority (1 Tex.Jur.2d, Accord and Satisfaction, Sec. 6, p. 212) states:

'Mutual assent of the parties is an indispensable element of an accord and satisfaction. In other words, it is essential that what is given be offered in satisfaction and extinguishment of the original demand, and that it be so accepted.'

It has also been held that the parties must intend and the creditor must fully understand that the amount tendered is conditioned as full settlement. ¹ McCarty v. Humphrey, Tex.Com.App., 261 S.W. 1015; Daugherty v. Herndon, 27 Tex.Civ.App. 175, 65 S.W. 891, error ref.; Shannon v. Hay, Tex.Civ.App., 153 S.W. 360, error ref. It has also been held that if the creditor is to be held to have surrendered his claim against the debtor, it must be shown that he understood or should have understood that he was doing so when he received the consideration claimed therefor. ¹ Bergman Produce Co. v. Brown, Tex.Civ.App., 172 S.W. 554; Early-Foster Co. v. W. F. Klump & Co., Tex.Civ.App., 229 S.W. 1015.

Here the contention is that an accord and satisfaction resulted as a matter of law at the time the checks bearing the notation 'Account in Full' were tendered to appellee and accepted by him. Viewing the situation as it appeared at that time, appellant was of the opinion that there had been an agreement to cancel the contract at the end of thirty days, and that he was paying appellee all the money that he owed him under the terms of the contract. Appellee, on the other hand, was of the opinion that the contract was being terminated by the unilateral action of appellant and that he was entitled to continue working under the terms of the contract for an additional sixty-day period. Appellee contends that he understood the notation on the back of the check to mean payment in full for the work actually performed at that time, and so testified on the trial of the case. This contention is given added credence by reason of the fact that the words 'Account in Full' have no readily ascertainable and generally accepted meaning applicable to all situations. In Black's Law Dictionary the word 'account' is defined as 'a detailed statement of the mutual demand in the nature of debt and credit between parties, arising out of contracts or some fiduciary relation,' citing Portsmouth v. Donaldson, 32 Pa. 202, 72 Am.Dec. 782, and further defines the term as follows:

'An 'account' is defined as a statement of pecuniary transactions; a record or course of business dealings between parties; a list or statement of monetary transactions, such as payments, losses, sales, debits, credits, etc., in most cases showing a balance or result of comparison between items of an opposite nature; and is not held to include a liability for unliquidated damages resulting from the breach of an entire contract, expressing only an entire consideration', citing Harnischfeger Sales Corp. v. Pickering Lumber Co., 8 Cir., 97 F.2d 692.

Webster's New Collegiate Dictionary defines the word 'account' as 'a reckoning; computation. 2. A record or reckoning of debit and credit, esp. in money, usually with a balance; as: a balanced statement of receipts and expenditures of a given period; the series of items under one heading in a company's ledger; a reckoning of charged purchases and credits rendered periodically.'

In Humble Oil & Refining Co. v. Southwestern Bell Telephone Co., Tex.Civ.App., 2 S.W.2d 488, 490, the following statement appears:

'* * * an account between parties contemplates and presupposes a contract, express or implied, under the terms of which a party has sold and delivered chattels to another in consideration of his express or implied promise and agreement to pay therefor, as distinguished from damages founded on a tort which one party may suffer by reason of the negligent acts and conduct of another party whereby he has been deprived of the value of his property.'

In Dodson v. Kemper Military School, Tex.Civ.App., 42 S.W.2d 288, 290, this statement appears:

"An 'account' has been defined to be 'a detailed statement of the mutual demands in the nature of debt and credit between parties, arising out of contracts or some fiduciary relation."

McCamant v. Batsell, 59 Tex. 363, 367.'

It appears from the citation of authorities that the meaning of the word 'account' does not usually include a liability for unliquidated damages resulting from the breach of an entire contract, Harnischfeger Sales Corp. v. Pickering Lumber Co., 8 Cir., 97 F.2d 692, 695, although it has been held that the word may refer either to past or future indebtedness. Semel v. Braun, 94...