First Nat. Bank & Trust Co. v. Fireproof Warehouse & Storage

• Decision Date: 01 March 1983
• Citation: 8 Ohio App.3d 253,456 N.E.2d 1336,8 OBR 326
• Court: Ohio Court of Appeals
• Parties: , 8 O.B.R. 326 FIRST NATIONAL BANK & TRUST COMPANY, Appellee, v. FIREPROOF WAREHOUSE & STORAGE, Appellant.

Page 253

8 Ohio App.3d 253

456 N.E.2d 1336, 8 O.B.R. 326

FIRST NATIONAL BANK & TRUST COMPANY, Appellee, v. FIREPROOF WAREHOUSE & STORAGE, Appellant.

Court of Appeals of Ohio, Tenth District, Franklin County.

March 1, 1983.

Syllabus by the Court

1. A creditor cannot avoid an accord and satisfaction by cashing a check which is tendered as payment in full of a disputed claim and by thereafter advising the debtor that he still intends to collect the full amount since the creditor must either accept the amount tendered upon the terms of the tender or reject it entirely. (Seeds Grain & Hay Co. v. Conger, 83 Ohio St. 169, 93 N.E. 892, paragraph one of the syllabus, followed.)

2. Indication that a check is tendered as payment in full need not necessarily be made on the check itself, it being sufficient if such indication is stated in a letter accompanying the tendered payment by check. (Venzie Corp. v. Riethmiller, 103 Ohio App. 343, 145 N.E.2d 460 , followed.)

Zacks, Luper & Wolinetz Co., L.P.A., and Barry H. Wolinetz, Columbus, for appellee.

White, Rankin, Henry, Morse & Mann and Lewis A. Rankin, Columbus, for appellant.

WHITESIDE, Presiding Judge.

Defendant, Fireproof Warehouse & Storage, appeals from a judgment of the Franklin County Municipal Court and raises two assignments of error, as follows:

"1. The court below erred in holding that appellant's answer did not sufficiently set forth accord and satisfaction as a defense.

"2. The trial court erred in determining that no accord and satisfaction occurred between appellee and appellant."

Plaintiff, First National Bank & Trust Company, is the assignee of Davis Heliarc Company and brought this action upon an alleged account owed by defendant. Davis Heliarc contracted with defendant to rework and reassemble used metal shelving furnished by defendant. Plaintiff presented no evidence as to the terms of the agreement, but defendant's agents testified that they had made arrangements through Davis Heliarc's employee, James Fouty, for reworking the used shelving, with compensation to be payment for labor at the rate of $18 per hour and with an estimate of the total cost being somewhere between $1,500 and $2,500 but in no event more than $2,500. Defendant's evidence also indicates that the billing was to be made weekly, which apparently was not done.

Although the action is upon an account, no evidence of an account was presented; instead, only a ledger sheet referring to an invoice of November 14, 1978, indicating labor of 375.6 hours at the hourly rate and material in the amount of $137.35 was introduced. Not only does the evidence indicate that the work commenced in early October, but it is obvious that the 375.6 labor hours were not performed on November 14. Plaintiff did present testimony of a former employee of Davis Heliarc that this number of hours was expended in performing the work but produced no account or records indicating a foundation for the ledger sheet, even though the evidence was clear that shipments were made at various times.

Plaintiff further presented testimony that the "job" consisted of "whatever was written up on the sales order," but did not introduce the sales order into evidence. This witness, who was plant manager of Davis Heliarc at the time in question, testified that, after delivering between eight and ten completed racks, he talked on the telephone with some unidentified person holding some unknown position with defendant who inquired as to how much time had been spent on the job, and he indicated that approximately seventy-five percent of the time had been expended, but that "I am not sure of how many hours were on the estimate." In other words, there was no evidence of whether seventy-five percent consisted of ten hours or two hundred hours. Nor was there any evidence as to the cost for materials or any evidence of an agreement on the part of defendant to pay for the materials, defendant producing evidence that it furnished all materials. For whatever reason, Fouty, admittedly the agent of Davis Heliarc who directly dealt with defendant in this transaction, did not testify. The plant manager did testify that, during this telephone conversation with the unidentified person, he was instructed "to proceed on with the job" without further elucidation as to what this meant.

An invoice dated November 14, 1978, in the amount of $6,898.15 was sent to defendant, whose operations manager testified as to the arrangements made with Fouty, including a telephone conversation during the progress of the work, in which Fouty indicated that one hundred end pieces had been completed with charges to that point of $1,850, which indicated that the total cost would be no more than $2,500. He further testified that, upon receiving the invoice, he telephoned Fouty, who said, " 'Well, that's what we got in it.' " By letter dated December 8, 1978, the operations manager acknowledged receipt of the invoice, reviewed the understanding, noted that the shelving was not properly fabricated and concluded with the statement, "[t]herefore, we are enclosing a check in the amount of $2500 which we feel constitutes our fulfillment of our agreement with Mr. Fouty." The check was...