High-Plains Co-op. Ass'n v. Stevens

• Decision Date: 30 October 1979
• Docket Number: No. 42359,HIGH-PLAINS,42359
• Citation: 204 Neb. 664,284 N.W.2d 846
• Parties: COOPERATIVE ASSOCIATION, Appellant, v. Jerry L. STEVENS, Appellee.
• Court: Nebraska Supreme Court

Page 846

284 N.W.2d 846

204 Neb. 664

HIGH-PLAINS COOPERATIVE ASSOCIATION, Appellant, v. Jerry L. STEVENS, Appellee.

No. 42359.

Supreme Court of Nebraska.

Oct. 30, 1979.

Syllabus by the Court

1. Accord and Satisfaction: Words and Phrases. An accord and satisfaction is an agreement to discharge an existing indebtedness by the rendering of some performance different from that which was claimed due.

2. Accord and Satisfaction. The acceptance of the substituted performance in full satisfaction of the claim discharges the indebtedness.

3. Accord and Satisfaction. It is essential that there be a bona fide dispute between the parties, that the substituted performance be tendered in full satisfaction of the claim, and that the tendered performance be accepted.

4. Accord and Satisfaction: Words and Phrases. An executed compromise settlement of a good faith controversy is an accord and satisfaction.

5. Trial: Instructions. It is the duty of the trial court to instruct the jury upon the issues presented by the pleadings and the evidence.

6. Trial: Instructions. Where the trial court has instructed the jury affirmatively upon the issues presented by the pleadings and the evidence, it is unnecessary to instruct in a negative form.

H. L. Jackman and R. H. Roberts, Grant, and Girard & Gale, North Platte, for appellant.

Padley & Dudden, P. C., Ogallala, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE and HASTINGS, JJ.

BOSLAUGH, Justice.

This was a suit on an open account for fertilizer, chemicals, and other agricultural supplies sold to the defendant, Jerry L. Stevens, by the plaintiff, High-Plains Cooperative Association. The jury returned a verdict for the defendant and the plaintiff has appealed. The principal assignments of error relate to the sufficiency of the evidence to sustain the verdict, an evidentiary ruling by the trial court, and the instructions to the jury.

The evidence shows that the defendant farms near Grant, Nebraska. Since sometime in the late 1960's the defendant has done business with the plaintiff. In December 1975, the manager of the plaintiff, Robert Ryland, talked to the defendant about purchasing all of his fertilizer and chemicals for the 1976 season from the plaintiff. As an inducement to the defendant, Ryland told the defendant that if the purchases were "booked" in 1975, the defendant would receive a cash dividend in 1976 from the materials used during that year. The defendant finally agreed to a "booking" in the amount of $52,000, which represented chemicals and fertilizer purchased by the defendant to be delivered by the plaintiff in 1976.

Starting in August or September 1976, Ryland asked the defendant for a payment on his account. The defendant claimed that he had not received itemized statements of his account and asked for such a statement. During this time the defendant had submitted several claims against the plaintiff. The plaintiff had submitted the claims to its insurance carrier, which had refused payment. On November 18, 1976, and again on January 11, 1977, the defendant and Ryland had a conversation at Ryland's office concerning the account and some of the matters which the defendant was complaining about.

On January 18, 1977, the defendant delivered a 4-page letter and check in the amount of $25,000 to Ryland. The letter discussed the complaints which the defendant had against the plaintiff and stated that the check was to be used for "complete settlement" of the defendant's accounts with the plaintiff. The plaintiff cashed the check and applied $10,271.90 of the proceeds to pay the defendant's Southwestern Farms, Inc., account in full and applied the balance of $14,728.10 to the defendant's account in his own name. This action was commenced on February 3, 1977. The plaintiff claimed the defendant was indebted to it in the amount of $61,959.58.

The principal issue is whether the $25,000 payment to the plaintiff on January 18, 1977, was an accord and satisfaction that discharged the defendant's debt to the plaintiff. An accord and satisfaction is an agreement to discharge an existing indebtedness by the rendering of some performance different from that which was claimed due. The acceptance of the substituted performance in full satisfaction of the claim discharges the indebtedness. Farmland Service Coop., Inc. v. Jack, 196 Neb. 263, 242 N.W.2d 624. It is essential that there be a bona fide dispute between the parties, that the substituted performance be tendered in full satisfaction of the claim, and that the tendered performance be accepted. An executed compromise settlement of a good faith controversy is an accord and satisfaction.

The evidence shows that there were a number of disputed items between the parties. The defendant claimed that Ryland, the plaintiff's manager, had told him that his cash dividend in 1976 would be approximately $20,000. The actual dividend which was applied to the account was less than $3,000. The defendant further claimed that a large part of the fertilizer, which the plaintiff claimed had been delivered to the defendant and applied to his fields, had in fact not been delivered. The defendant also claimed that the plaintiff did not furnish and apply chemicals to his fields in accordance with their agreement; that some were never applied and the defendant had to make other arrangements; and that others were applied improperly or at the wrong time, with the result that the defendant had to hire hand labor to weed some of the fields. The defendant made adjustments to the account for these items and arrived at the $25,000 figure which he tendered to the plaintiff on January 18, 1977.

The letter delivered with the check stated plainly in the...