Inger Interiors v. Peralta

• Decision Date: 10 February 1986
• Docket Number: No. 50014,50014
• Citation: 506 N.E.2d 1199,30 Ohio App.3d 94
• Parties: , 30 O.B.R. 193, 3 UCC Rep.Serv.2d 1317 INGER INTERIORS, Appellee, v. PERALTA et al., Appellants.
• Court: Ohio Court of Appeals

Page 94

30 Ohio App.3d 94

506 N.E.2d 1199, 30 O.B.R. 193, 3 UCC Rep.Serv.2d 1317

INGER INTERIORS, Appellee, v. PERALTA et al., Appellants.

No. 50014.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Feb. 10, 1986.

Syllabus by the Court

When a bona fide dispute exists as to the amount of a debt, and the debtor sends the creditor a check with the phrase "paid in full" marked on the front and back of the check, the creditor has two options: (1) return the check as being insufficient, or (2) retain the check in accord and satisfaction of the debt. However, the creditor does not have a third option, i.e., he cannot accept the check as partial payment by crossing out "paid in full" and writing "partial payment" on the check. (Seeds Grain & Hay Co. v. Conger [1910], 83 Ohio St. 169, 93 N.E. 892, paragraph one of the syllabus, followed.)

Inger Bednar, d.b.a. Inger Interiors, for appellee.

Jean K. Nash, Cleveland, for appellants.

MARKUS, Presiding Judge.

The defendant-customers appeal from a judgment granting the plaintiff-decorator's claim for an allegedly unpaid account balance. Contrary to the customers' contention, the trial court reasonably found that the customers had agreed to pay the challenged balance. However, undisputed evidence established that the decorator had accepted the customers' proposed settlement for this controversy. Hence, we reverse the trial court's judgment and enter final judgment dismissing the decorator's claim.

I

The trial court's small claims referee heard the evidence on the plaintiff-decorator's claim and reported these findings to the court:

"In December, 1983, plaintiff met with defendant [sic ] to discuss the covering of 4 custom pillows, shades, duster & the construction of a quilted bedspread. A letter, dated 12/8/8 was sent to defendant [sic ] confirming the order. On or about January 6, 1984, plaintiff sent a proposal to defendants giving a balance for the job as $1590.00. Plaintiffs [sic ] testified that this estimate failed to include a price for the 'stitching' of the quilted bedspread as that amount could only be determined by the person doing the stitching and would be calculated on an hourly basis. On or about April 16, 1984, plaintiffs [sic ] sent a letter to the defendants clarifying their [sic ] Jan. 6th proposal and stating again that they [sic ] could not quote a price on the stitching on the Jan. 6th letter, and could only do so upon completion of the work.

"On May 2, 1984, defendants sent plaintiffs [sic ] a check for $652. 0 and marked 'Paid in Full' both on the front & back of the check. In addition, defendants also sent a letter with the check saying that the check represented 'total payment in full.' The defendant [sic ] also stated 'I really don't see why you're asking for $1,064.00 more.' Clearly both parties realized that the total amount was in dispute. Plaintiff Charles Bednar [the decorator's representative] testified that he received the letter & the check and that he crossed out the 'paid in full' notations on the check & wrote in 'partial payment.' Defendant [sic ] now claims that since plaintiff cashed the check--an accord and satisfaction has been set up as a defense to the complaint."

The referee supplied the court with the parties' evidentiary exhibits: the described correspondence, an affidavit from the plaintiff-decorator, and the customers' checks. One check was dated February 4, 1984; it paid 652.50 with the notation " 1/2 dep. labor spread & curtain." Another check was dated May 2, 1984; it paid $652.50 and carried the customers' original notations "Paid in Full" on the face and back, which the decorator struck and replaced with the notations "partial payment." The decorator negotiated and cashed each of the checks within a few days after the date of its issue.

The decorator did not seek recovery for material costs which the customers had paid separately. Further, the decorator agreed that $285 of the original $1,590 quotation for labor represented pillows and shams which the parties later deleted from the sale. Thus, the customers paid a total of $1,305 for labor. The decorator claimed that the customers owed that amount plus "extra for quilting and sham and freight" ($308) and "sales tax" ($104.84). Thus, the decorator sought an additional $412.

Contrary to its referee's recommendation, the court rejected the customers' contention that the May 2 check settled the decorator's claim. Instead, the court granted the decorator judgment for the alleged $412 balance less $75 "for excess quilting and fabric not returned to defendants." The record contains no evidence to justify that $75 credit, but the decorator does not challenge it here.

II

In their second assignment of error, the customers argue that the trial court erred by finding that they ever owed the claimed balance. More specifically, they contend that the decorator first asserted these additional charges after the decorator had fully performed the agreement.

The customers failed to provide us with a record of the applicable evidence on this subject, if the trial court received any such evidence. Their assertions in trial and appellate briefs do not constitute evidence. Apparently without objection by the customers, the referee accepted the decorator's affidavit in lieu of testimony at the hearing. That affidavit and the decorator's letters to the customers indicate the decorator's inability to quote a price for the special stitching until it was completed.

The evidence summarized by the referee and the remaining exhibits do not demonstrate whether the quoted price included charges for special stitching. Nothing in those materials denies the customers' obligation for freight or sales taxes. Absent any contrary agreement, the customers presumably undertook to pay for the reasonable value of the decorator's contractual performance. Cf. R.C. 1302.18.

In a non-jury trial, the court weighs the evidence and determines which reasonable inferences to accept. See State v. Walker (1978), 55 Ohio St.2d 208, 213, 9 O.O.3d 152, 155, 378 N.E.2d 1049, 1052; State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus. An appellate court will not disturb those findings unless they are clearly contrary to the evidence. State v. McKenzie (July 1, 1982), Cuyahoga App. No. 44167, unreported.

We must presume that the trial court correctly construed the parties' agreement if the record does not clearly show the claimed error. Cf. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 10 OBR 408, 461 N.E.2d 1273; Loga v. Strongsville Bd. of Edn. (Nov. 21, 1985), Cuyahoga App. No. 49776, unreported. This record provides no basis for a reversal of the disputed factual finding about the parties' intentions. Hence, we overrule the second assigned error.

III

The customers' first assigned error contests the trial court's refusal to dismiss the decorator's claim as settled. This contention has merit.

When the decorator negotiated the customers' check, he accepted the terms specified for its delivery. Unless the customers expressly or impliedly withdrew their stipulation that the check was full payment, the decorator could not retain it without accepting the condition. Seeds Grain & Hay Co. v. Conger (1910), 83 Ohio St. 169, 93 N.E. 892, paragraph one of the syllabus; Platt v. Penetryn System, Inc. (1949), 151 Ohio St. 451, 456, 39 O.O. 273, 275, 86 N.E.2d 600, 602; Morris Skilken & Co. v. Watkins Furniture Co. (App. 1961), 87 Ohio Law Abs. 208, 212, 18 O.O.2d 374, 376, 176 N.E.2d 256, 259; Trissel v. Schill (Aug. 2, 1973), Cuyahoga App. No. 32222, unreported; Westview Concrete Corp. v. Hudecek Cement Contractors, Inc. (Aug. 6, 1981), Cuyahoga App. No. 43072, unreported. The decorator's unauthorized unilateral modification of the customers' express condition did not change the effect of his acceptance of their payment.

The customers unquestionably stipulated that their May check constituted full and final payment for any obligation they had to the decorator. The parties then had a bona fide dispute about the amount of any remaining debt. Consequently, the decorator's acceptance of the payment with that stated condition represented an accord and satisfaction which terminated his right to any further payment. Cf. Kirk Williams Co. v. Six Industries, Inc. (1983), 11 Ohio App.3d 152, 153, 11 OBR 233, 235, 463 N.E.2d 1266, 1269; Chillicothe Hospital v. Garrett (1971), 26 Ohio App.2d 277, 279, 55 O.O.2d 425, 426, 271...