Curran v. Bray Wood Heel Co. Inc.

• Citation: 68 A.2d 712
• Decision Date: 04 October 1949
• Docket Number: No. 940.,940.
• Parties: CURRAN v. BRAY WOOD HEEL CO., Inc.
• Court: United States State Supreme Court of Vermont

68 A.2d 712

CURRAN

v.BRAY WOOD HEEL CO., Inc.

No. 940.

Supreme Court of Vermont.

Oct. 4, 1949.

Kenneth E. Curran sued the Bray Wood Heel Co., Inc. for balance allegedly due for lumber and trucking of the lumber.

The judgment of the County Court of Orleans County, Samuel H. Blackmer, P. J., was for plaintiff on a verdict of the jury, and the defendant brought exceptions.

The Supreme Court, Adams, J., reversed judgment for plaintiff and entered judgment for defendant for costs, reviewing the law relating to accord and satisfaction, and holding that if plaintiff retained defendant's check, which had attached to it a stub stating that it was in full payment, for longer than a reasonable time, there was an accord and satisfaction, and that retention of check by plaintiff or his attorneys for more than 16 months before suit was brought and for more than three months after that was an unreasonable time as a matter of law.

Witters & Longmoore, St. Johnsbury, Clarence V. Akley, Lyndonville, for plaintiff.

Lee E. Emerson, Barton, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY and ADAMS, JJ.

ADAMS, Justice.

In this action the plaintiff seeks to recover from the defendant a balance due for lumber and trucking of the same. The defendant pleaded the general issue, accord and satisfaction, payment and the statute of frauds. Trial was by jury with verdict and judgment for the plaintiff. The case is here upon the defendant's exceptions. Because of our view of the matter, we will first consider the exceptions to the denial of the defendant's motion for a directed verdict.

Viewed in the light most favorable to the plaintiff his evidence tended to show the following facts: The plaintiff and defendant entered into an oral contract in April, 1945, whereby the plaintiff was to deliver from his mill in Littleton, N. H. to the defendant's mill at Orleans, Vt. a certain type of lumber at an agreed price of $50.50 per M., plus $6 per M. for trucking and loading; the scale to be by plaintiff at his mill end; some of it was to be stacked and dried at an additional price of $3 per M. It was to be paid for weekly by check. The plaintiff started delivery in April, 1945, and between then and the latter part of January, 1946, had delivered over one million feet. The defendant tallied or estimated the lumber as delivered at its mill and paid for it weekly by check in accordance therewith. Early in February the plaintiff noticed a spread between the tallies and by certain computations arrived at a difference in his favor of 6337 feet which had occurred during the last week in January and which was approximately one truck load and which he claimed the defendant had not paid for. There was also a dispute over some lumber that the plaintiff had sold to one Barber at St. Johnsbury which the plaintiff claimed the defendant had received and should pay for. After this controversy arose the plaintiff stopped delivery except for one truck load delivered in March. After the dispute the plaintiff had several talks with three of the Brays who were officers of the defendant corporation in an attempt to settle their differences without result. On July 20, 1946, the plaintiff sent the defendant an itemized statement setting forth debit items amounting to $925.01; credit items of $448.10 and a balance due of $476.91. This did not include any item for the Barber lumber. It did include an item for 6337 feet and trucking and loading of the same. On this statement he said the account was considerably past due and asked for payment before the end of the month. On July 29th the defendant wrote the plaintiff as follows: ‘Enclosed please find our check for $118.87. This is the amount due according to our records, which we have carefully checked and is arrived at as follows:’ then followed an itemized statement of the account with the same debits and credits as on the statement sent by the plaintiff omitting the item of 6337 feet. This letter had a summary at the bottom of debits of $566.97 and credits of $448.10. The credits were subtracted from the debits showing a balance of $118.87 and opposite this figure was ‘check 7/29’. There was enclosed with the letter a check of the defendant dated July 29th, payable to the order of the plaintiff, drawn on The Barton Savings Bank & Trust Co. for $118.87; it had a stub attached to it upon which was printed, ‘By endorsement this check is accepted in full payment of the following account’; below that was written, ‘Final settlement as per letter 7/29/46

                +----------------------------------------+
                ¦                               ¦566.97 ¦¦
                +-------------------------------+-------+¦
                ¦                               ¦448.10 ¦¦
                +-------------------------------+-------+¦
                ¦                               ¦118.87 ¦¦
                +-------------------------------+-------+¦
                ¦in printing 'total of invoices'¦118.87 ¦¦
                +-------------------------------+-------+¦
                ¦in printing 'amount of check'  ¦118.87”¦¦
                +----------------------------------------+
                

The check and letter were received by the plaintiff a few days after July 29th. What happened between the plaintiff and the Brays in regard to the check and letter after that comes from the lips of the plaintiff and we must take his version of it although the Brays denied that he ever saw them about it. He testified that after he had received the check he went to the defendant's office with it for the Brays to look at and told them the statement wasn't complete; that the check stated ‘final settlement as per letter’ and that the letter didn't include all the items; that the check wasn't correct and he wouldn't cash it with ‘final settlement as per letter’ written on it; that he didn't offer to return it and took it with him when he left; that he didn't know how soon after he received the check this took place; that he then put the check in his files and did nothing further about it until he gave it to an attorney in N. H. in April, 1947, when he asked him to collect his account against the defendant and that he never saw the check after that until he saw it in court. On April 10th this attorney wrote the defendant for the plaintiff that he had the plaintiff's account against it for collection amounting to $661.04 which included the check for $118.87 on which was marked ‘Final payment’ and which had not been cashed for that reason. Nothing further was done until this suit was brought on December 24, 1947. No objection was ever made that the check was an improper method of tender of the amount the defendant claimed due. It was never cashed and never tendered back to the defendant until just before the close of the evidence on the third day of the trial, March 19, 1948, when the plaintiff's attorney tendered it to the defendant ‘for cancellation’. The tender was refused. The Court then impounded it with the County Clerk. The defendant objected to the Court following it to be tendered and to the order impounding it and saved exceptions. During the trial the defendant presented testimony that the check would be paid if presented to the bank.

The 5th, 6th and 7th grounds of the motion for a directed verdict for the defendant may be considered together. They were in substance that the check for $118.87 was tendered in full and final payment of the account and difference between the parties; that there was no protest as to the medium of payment and it was retained by the plaintiff an unreasonable length of time and as a matter of law there was an accord and satisfaction and payment of the account.

The question of accord and satisfaction may be one of fact or of law. Where the evidence leaves no room for opposing inferences it is one of law. Dow v. A. C. Cheney Piano Action Co., 104 Vt. 350, 160 A. 274.

It is our well settled rule that, if one who has a disputed claim against another accepts and retains a less amount than he claims is due which is offered by the other in full settlement of such claim it operates as an accord and satisfaction of such claim, and further controversy respecting it is ended. Harrington v. Mutual Benefit Health & Accident Ass'n, 108 Vt. 48, 50, 182 A. 179; Keefe v. Fraternal Protective Ins. Co. et al., 107 Vt. 99, 102, 176 A. 305; Dow v. A. C. Cheney Piano Action Co., supra and cases cited.

Here the amount was in dispute; the sum offered was less than that claimed; it was offered in full and final settlement according to the notation on the check and the letter accompanying it. It is different than the check sent in the case of C. & O. Oil Co., Inc., v. Curtis Funeral Home, Inc., 106 Vt. 342, 175 A. 9. There the notation on the check showed payment for a particular item and the debtor later gave further checks on account.

To constitute an accord and satisfaction, however, the offer must be such that if the creditor accepts it, he is bound to understand that he takes it in full settlement. Siwooganock Guaranty Savings Bank v. Cushman, 109 Vt. 221, 222, 244, 195 A. 260; Harrington v. Mutual Benefit Health & Accident Ass'n, supra, and cases cited. Here the plaintiff knew and understood that the check was sent and offered in full or final settlement. He made his objection to cashing it on that ground.

It makes no difference whether the amount offered is in money or by check. If it is accepted, even under protest by the creditor and the check cashed, if that is the medium of the tender, the protest is ineffectual. He is bound by his act and it operates as an accord and satisfaction. Preston v. Grant, 34 Vt. 201, 203; McGlynn v. Billings, 16 Vt. 329; McDaniels v. Lapham et al., 21 Vt. 222, 236; McDaniels v. President, etc., Bank of Rutland et al., 29 Vt. 230, 235, 70 Am.Dec. 406; Connecticut River Lumber Co. v. Brown, 68 Vt. 239, 242, 35 A. 56; Murphy v. Little, 69 Vt. 261, 263, 37 A. 968; In re Stevens & Adams, Locklin, Rec., 74 Vt. 408, 414, 52 A. 1034; Drown's Guardian v. Chesley's Estate, 92 Vt. 19, 25, 102 A. 102, L.R.A.1918A, 1056; Keefe v. Fraternal...