Farina v. Sheridan Corp.

• Decision Date: 12 June 1959
• Citation: 153 A.2d 607,155 Me. 234
• Parties: Anthony FARINA and Ernest G. Farina, d/b/a Farina Brothers Co. v. SHERIDAN CORPORATION.
• Court: Maine Supreme Court

Page 607

153 A.2d 607

155 Me. 234

Anthony FARINA and Ernest G. Farina, d/b/a Farina Brothers Co. v. SHERIDAN CORPORATION.

Supreme Judicial Court of Maine.

June 12, 1959.

Frank W. Linnell, Auburn, for plaintiffs.

John G. Marshall, Lewiston, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.

TAPLEY, Justice.

On exceptions and motion for a new trial. The action is in assumpsit and was tried before a jury at the March Term, 1957 of the Superior Court for the County of Androscoggin. The verdict was in the sum of $808.43. The defendant filed a plea of general issue, with brief statement of special matter of defense alleging accord and satisfaction. The plaintiffs were general contractors holding a general contract for certain construction work for the United States Government on a project at Limestone, Maine. The contract included the erection of steel buildings. The defendant was in the business of selling and erecting prefabricated steel buildings and, as a subcontractor under the plaintiffs' general contract, agreed to furnish and erect certain prefabricated steel buildings in accordance with the requirements of the government and with specifications contained in its subcontract. There arose during their relationship disputes between them concerning a claim for extras advanced by the defendant. These disputes never were resolved by mutual negotiations. The amount of the disputed claims for extras were in the sum of $813.43. During the course of the controversy the plaintiffs, intending to pay the balance due on the contract, mailed a check to the defendant, on December 20, 1954, in the sum of $8,538.09. This check did not include the disputed amount of $813.43. The sum of $8,538.09 constituted an overpayment of the balance due under the contract by $2,214.39. The defendant discovered this overpayment and wrote to the plaintiffs calling their attention to the overpayment and, after deducting $813.43, the amount of the claim for extras, enclosed a check for $1,400.96, the amount of the overpayment, less the disputed $813.43. The plaintiffs by this action seek to recover this amount of $813.43.

Exceptions were taken by the defendant to the admission of certain testimony allowed by the presiding Justice over objections and to the overruling of a motion by the defendant for a directed verdict. A motion for a new trial was addressed to the Law Court by defendant after a jury verdict favoring the plaintiffs.

The real issue between the parties is one of accord and satisfaction.

The record of the case develops certain uncontroverted facts which we propose to consider in chronological order. On November 4, 1954 the defendant communicated with the plaintiffs in writing, requesting balance of the contract price in as much as the work had been completed and approved. In this letter the plaintiffs were advised that in addition to the balance due on the contract price there was an additional sum claimed for extras. There was enclosed an itemized statement covering the extras which amounted to $813.43. The plaintiffs on November 8, 1954 answered by denying their responsibility for any extras. The next communication was from the defendant to the plaintiffs acknowledging receipt of the balance due under the original contract, advising of the overpayment and remitting a check for $1,400.96 which was the amount the defendant determined was due the plaintiffs after having deducted the amount of $813.43 for extras claimed. The check on its face was payable to the order of 'Farina Brothers.' On the left hand side of the check there was space provided for notations. At the top of this space were printed the words 'No Receipt Necessary If Incorrect Please Return' and underneath these printed words, in handwriting, 'in full.' On the reverse side of the check appears the words 'For deposit only to the account of Farina Brothers Co.' In addition to the check there is in evidence a deposit slip in the name of Farina Bros. Co. showing deposit of check from Sheridan Corp. in the amount of $1,400.96.

The defendant took it upon itself to return the overpayment, less its claim for extras by sending a check to the plaintiffs with the notation of 'in full' accompanied by a letter.

Chap. 113, Sec. 64, R.S.1954, becomes pertinent. It reads:

'No action on demands discharged by partial payment.--No action shall be maintained on a demand settled by a creditor or his attorney entrusted to collect it, in full discharge thereof, by the receipt of money or other valuable consideration, however small.'

The principles of accord and satisfaction require a tender on the part of the debtor in satisfaction of a particular demand and that the creditor accepts it as such. Fogg v. Hall, 133 Me. 322, 178 A. 56; Crockett, Appellant, 130 Me. 135, 154 A. 180. Counsel for the defendant cites with confidence the case of Larsen v. Zimmerman, 153 Me. 116, 135 A.2d 270, 271, a case of fairly recent date determined by this Court. Counsel for the plaintiffs, with frankness, admits that unless the facts of the instant case can be distinguished from those of the Larsen case, the decision in the Larsen case should prevail here. The Larsen case was before the Law Court on exceptions to the acceptance of a referee's report. A transcript of the evidence taken before the referee was not a part of the record. There was a disputed claim arising from the construction of a house. The check delivered by Zimmerman to Larsen in the sum of $1,000 bore the printed words 'By endorsement this check is accepted in full payment of the following account' and below this was written 'Final.' There was also in print the following words 'If incorrect Please return. No other receipt necessary.' The check bore the endorsement of 'Oskar Larsen.' This Court referred to the findings of the referee when it said, 153 Me. on page 119, 135 A.2d on page 272:

'The findings 'It does not appear, however, that such intent was made clear to the plaintiff prior to his receipt of the check,' and 'There is no evidence that the parties discussed the offer of $1000.00 in final settlement,' are facts accepted by us at their full value. The error of law lies in the conclusion of the referee that to complete an accord and satisfaction the check was not evidence in itself sufficient without more to establish the intention of the defendants and the plaintiff in giving and receiving the check.'

We also said, 153 Me. on page 118, 135 A.2d on page 271:

'The record before us does not include a transcript of the oral testimony. From the report of the referee and the bill of exceptions it plainly appears that no evidence entered the case relating to the sufficiency of the asserted accord and satisfaction apart from the findings stated above from the bill of exceptions. To these facts--and in particular to the check with its terms and conditions--the referee erroneously applied the pertinent rules of law.'

To summarize the facts in the Larsen case, (1) an agreement between the parties to build a house; (2) a disputed claim arising from the construction of the house; (3) a check for $1000.00 paid by Zimmerman to Larsen by means of a check marked 'final;' (4) the acceptance of the check by Larsen. This Court determined under these circumstances that the wording on the check expressed the intent of the debtor to offer full satisfaction of the debt by tendering the check and that by accepting the tendered check Larsen accepted the offer and thereby accord and satisfaction was accomplished. This transaction involved one claim, namely, the disputed price charged for the construction of the house.

The instant case involves an entirely different set of facts. In the first place the transaction involved two claims, one for the overpayment of the contract and the other a claim for extras about which there was a dispute. The evidence not only involves the check but also a letter advising plaintiffs that defendant has a claim for extras, an itemized statement detailing the extras, a communication from defendant to plaintiffs returning the overpayment, less the deduction for extras, other correspondence bearing on the subject and, in addition to all of this, some verbal testimony. Thus the factual aspects of the Larsen case as compared to those of the case at bar are distinguishable.

The crux of this case is whether the defendant made known to the plaintiffs in a clear and convincing manner its intention of deducting the claim for extras from the amount of money in its possession belonging to the plaintiffs and, further, did the plaintiffs understand the conditions of acceptance or were they of such character that they should have understood them?

The evidence not only involves the check but also correspondence concerning the check, the claim for extras and other matters bearing on the controversy. The principle of accord and satisfaction and the requirements of its proof (under Chap. 113, Sec. 64, R.S.1954) are well explained in the case of Fuller v. Smith, 107 Me. 161, on page 165, 77 A. 706, on page 708, wherein the Court, said:

'Under this statute, an accord and satisfaction is an executed agreement, whereby one party gives and the other receives, in satisfaction of a demand, liquidated or unliquidated, some money or other valuable consideration however small. No invariable rule can be laid down as to what constitutes such an agreement, and each case must be determined largely on its own peculiar facts. The agreement need not be express, but may be implied from the circumstances and the conduct of the parties. It must be shown, however, that the debtor tendered the amount in satisfaction of the particular demand, and that it was accepted by the creditor as such.'

There is involved in the Fuller case an acceptance of a check which was accompanied by a letter purporting to explain what the check was in payment of. The intention of the debtor, as evidenced by the...