Groves v. Sawyer

• Decision Date: 20 November 1964
• Docket Number: No. 3933,3933
• Parties: J. G. GROVES, Appellant, v. N. C. SAWYER, Appellee.
• Court: Texas Court of Appeals

Page 193

384 S.W.2d 193

J. G. GROVES, Appellant, v. N. C. SAWYER, Appellee.

No. 3933.

Court of Civil Appeals of Texas, Eastland.

Nov. 20, 1964.

Rehearing Denied Dec. 4, 1964.

Perkins, Floyd, Davis & Oden, Alice, for appellant.

David A. Grose, Alice, for appellee.

GRISSOM, Chief Justice.

J. G. Groves sued N. C. Sawyer for $542.63, alleged to be the balance due for work and material furnished by Groves in constructing a motel for defendant. Sawyer answered that after Groves had completed his contract and presented Sawyer with said claim, which Sawyer disputed, Sawyer executed and delivered to Groves his check for $269.25, writing on the reverse side above the place for Groves' endorsement: 'Payment in full for all labor and material and in full settlement for contract performed by me on the property known as Sands Motel * * *. The acceptance of this check acknowledges settlement in full'; that (1) the check was tendered to Groves in full settlement of his disputed claim and that Groves accepted and cashed the check in full satisfaction and discharge of his cause of action; (2) that Groves retained the check for nearly five months and then on October 28, 1963, returned it to Sawyer, who sent it back to Groves on the day he received it, stating that it was being returned because Sawyer had tendered it in full payment of Groves' claim and Groves had accepted and retained it for nearly five months and, therefore, there was an accord and satisfaction; that plaintiff again, on November 1st returned the check to defendant, who promptly returned it to plaintiff with the statement that it was not being returned to him as part payment of Groves' claim but that it had theretofore been tendered to and accepted by plaintiff in full settlement by retaining the check for five months and, further, that thereafter Groves endorsed the check, scratched out the condition placed thereon by Sawyer, cashed it and kept the money, and there was an accord and satisfaction of plaintiff's claim.

Sawyer filed a motion for summary judgment supported by affidavits and correspondence between the parties showing the facts alleged by him. Plaintiff answered that there was a genuine issue as to a material fact; that Groves had delivered the uncashed check to his attorney with the instruction that he would not accept it as full payment of his claim and that the correspondence attached to defendant's motion showed that the check was cashed only as part payment, not in full settlement, of plaintiff's claim and that the question whether plaintiff accepted the check in satisfaction of plaintiff's entire claim was one of fact. The court sustained defendant's motion and entered judgment accordingly. Groves has appealed.

Appellant contends the court erred in holding there was an acceptance of the check by retention thereof for five months. This point will not be further noticed because, although it was alleged as one of appellee's defenses, Sawyer concedes that it merely raised a question of fact and therefore, of itself, is insufficient to support the summary judgment. But, appellee says summary judgment was required because it is undisputed that Groves cashed the check tendered to him upon condition that he accept it as full payment of his claim.

Defendant's motion, the attached correspondence and affidavits disclose a bona fide dispute as to the correctness and liability of defendant for plaintiff's unliquidated claim, a tender of defendant's check for a lesser amount than claimed by plaintiff upon condition that it be accepted as full payment and that, knowing that condition, plaintiff accepted the check, cashed it and retained the proceeds. (See Franklin Insurance Company v. Villeneuve, 25 Tex.Civ.App. 356, 60 S.W. 1014, 1016; Burgamy v. Davis, Tex.Civ.App., 313 S.W.2d 365, 368; 1 Tex.Jur. 273.) Groves thereby bound himself to accept the money he obtained by cashing appellee's check as full payment of his claim. It is immaterial that at the time he...