Eder v. Yvette B. Gervey Interiors, Inc.
| Decision Date | 15 December 1981 |
| Docket Number | No. 80-1375,80-1375 |
| Citation | 407 So.2d 312 |
| Parties | , 33 UCC Rep.Serv. 146 Sidney EDER and Adele J. Eder, his wife, Appellants, v. YVETTE B. GERVEY INTERIORS, INC., a New York corporation, Appellee. |
| Court | Florida District Court of Appeals |
Ronald Sales of Law Offices of Ronald Sales, P. A., West Palm Beach, for appellants.
John W. Bellamy, West Palm Beach, for appellee.
This is an appeal from a final judgment awarding the plaintiff corporation in excess of $16,000 for breach of contract.
The Eders retained the services of appellee corporation in the person of Yvette Gervey to furnish and decorate their condominium apartment. According to appellants the maximum expense to them was to be $50,000 based upon cost plus a percentage. Appellee asserts that the figure was merely a cost estimate.
This figure was exceeded in early 1978 and more than $50,000 was paid by the Eders on account. Ms. Gervey testified that at one point Mrs. Eder told her not to worry about compensation because Mr. Eder was an honorable man who paid his bills. The amount owed became a matter of controversy.
At a meeting on March 4, 1978, Ms. Gervey told Mr. Eder that she was over her budget and didn't want to suffer a loss on the job. Mr. Eder testified that the parties then reached a compromise whereby the total sum of $60,000 was to constitute full settlement of the claim. Mr. Eder further testified that in reliance on his belief that the parties had agreed to a compromise he paid $9,700 at the time of the meeting and $4,000 on April 12, 1978. Ms. Gervey admitted that she was aware of Mr. Eder's impression that the figure of $60,000 reflected a full settlement, however she testified that she never actually agreed to accept the compromise sum.
Thereafter, on May 9, 1978 the Eders sent a check to appellee in the amount of $5,000 which bore the legend: "balance in full for all work done." Taking the position that a large sum remained due, appellee endorsed the check "the above is not acceptable as full payment," cashed it and brought this suit for the amount claimed as the unpaid balance on the account, prevailing on that claim in the lower court.
The primary issue thus presented is whether the payee of a check (the creditor) which is tendered in full and final performance of a disputed obligation may, by noting on the check a reservation of rights, cash the check and thereafter successfully rely on that reservation of rights to defeat an express, written condition inscribed on the check by the debtor that acceptance constitutes payment in full. Put another way, the question is whether Section 671.207, Florida Statutes (1979), (section 1-207 of the Uniform Commercial Code), applies to final payment for goods or services. That section provides:
A party who with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as "without prejudice," "under protest" or the like are sufficient.
Neither precedent nor commentary is consistent in the treatment of this issue. Illustrative are Yelen v. Cindy's, Inc., 386 So.2d 1234 (Fla.3d DCA 1980) and Miller v. Jung, 361 So.2d 788 (Fla.2d DCA 1978). In Yelen, the restrictive endorsement: "Received as partial agreement without prejudice, under protest, with full exclusive reservation of rights" was held insufficient to defeat the payor's clear expressed intention that acceptance of the check constituted a compromise and settlement. Section 671.207 Florida Statutes (1979) was not discussed.
In Miller, on the other hand, a landscaper received a check (for less than the amount claimed) marked "Landscaping paid in full" on the front and "cashing of this check constitutes release and waiver of any lien," on the reverse. Adding the words, "Negotiated by named payees under protest and with reservation of all their rights," the landscaper negotiated the check. The trial court denied the landscaper further payment because he had failed to notify the drawer of his reservation of rights prior to negotiating the check. The Second District reversed, holding that there was adequate reservation of rights under Section 671.207 and that to require prior notification would "eviscerate the purpose of the section, ..."
The conflicting policies represented by these disparate results are discussed by White and Summers, Uniform Commercial Code § 13-21 (2d ed. 1980) ...
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