George Linskie Co. v. Miller-Picking Corp.
| Decision Date | 20 January 1971 |
| Docket Number | MILLER-PICKING,No. B--2328,B--2328 |
| Citation | 463 S.W.2d 170 |
| Parties | GEORGE LINSKIE COMPANY, Inc., Petitioner, v.CORPORATION, Respondent. |
| Court | Texas Supreme Court |
Grady, Johnson, Smith & Blakeley, Robert C. Johnson, Dallas, for petitioner.
Strasburger, Price, Kelton, Martin & Unis, Royal H. Brin, Jr., and Mike Joplin, Dallas, for respondent.
This is a suit on a sworn account in which the trial court rendered a partial summary judgment for defendant based on accord and satisfaction as to the major portion of the account, and a judgment for plaintiff, based on a jury verdict, for the remainder of the account. The Court of Civil Appeals affirmed except as to the trial court's holding that no attorney's fees were recoverable. The latter issue was severed and that portion of the cause was reversed and remanded. 456 S.W.2d 519.
We sever, reverse and remand as to that portion of the cause covered by the partial summary judgment and affirm the judgment of the Court of Civil Appeals as to the remainder of the cause.
The suit was filed by George Linskie Company, Inc., a mechanical contractor, against Miller-Picking Corporation, an air conditioner manufacturer, for labor performed and materials furnished to correct defects in several large air conditioning units. The self-contained and packaged units were manufactured by defendant, Miller-Picking, for plaintiff, Linskie, to be installed on the roof of a new building under construction for Taylor Printing Company in Dallas. The parties will be referred to as in the trial court.
Defendant warranted the working condition of the units and agreed to test them after installation. During, or soon after installation, numerous defects were discovered. Rather than using its own personnel or a third party to correct the defects necessary to comply with its warranty, defendant made an arrangement with plaintiff to furnish materials and make the repairs from time to time as defects were discovered.
The sworn account of plaintiff covers thirteen invoices for labor performed and materials furnished for the benefit of defendant at various intervals from October 31, 1966 to July 18, 1967. The first twelve of the invoices, totaling $13,886.51, were received by defendant without any expression of objection until after the work was completed. Thereafter, on July 25, 1967, they were the subject of a letter from defendant to plaintiff reviewing all the invoices, disputing certain items, allowing others, and enclosing a check for.$5812.80 to cover the items on which defendant admitted payment was due. The trial court, on motion for partial summary judgment, held that this letter and the enclosed check was tendered and accepted in full satisfaction of the remainder due on the first twelve invoices and constituted an accord and satisfaction.
We do not agree with the holding of the trial court and the Court of Civil Appeals that the letter and acceptance of the check conclusively establish an accord and satisfaction as a matter of law. The check had no notation as to what it covered. The amount was simply a total of the items which defendant admitted to be due in the letter of July 25, 1967. The three page letter from defendant's manager of service to plaintiff's president is set forth in full in appendix to the opinion of the Court of Civil Appeals (456 S.W.2d 523--524). It begins as follows:
'Dear Mr. Linskie:
The letter then proceeds to analyze and discuss each of the invoices and states which ones will be honored in full and reasons why 'we do not feel' certain portions of others 'can be considered our responsibility,' or 'we feel' or 'in our judgment' other items are not properly charged against defendant. It states exactly what portion of each invoice is being included in the enclosed check and that the remaining portion is not included. It does not contain any statement that the check is tendered in full satisfaction of the twelve invoices. In fact, it asks for a further explanation of three small vendor invoices attached to Invoice No. 2386. The concluding paragraph contains this statement: 'We feel that this total payment of $5,812.80 for charges against the project through April 25, 1967 is quite equitable.'
This letter is sufficient to indicate that a dispute had arisen as to the amount due on some of the invoices, but beyond that it was conciliatory in nature and did not state positively that defendant would pay no more than the amount of the check enclosed. It clearly stated that the check was to cover the 'allowed' or undisputed items and that it did not cover or include those items which defendant disputes. It does not say or infer that plaintiff should not cash the check unless plaintiff was willing to accept it in full settlement of the listed invoices.
In opposition to defendant's motion for summary judgment, plaintiff filed an affidavit of its president, ...
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