Miller v. Jung, 78-157
| Decision Date | 26 July 1978 |
| Docket Number | No. 78-157,78-157 |
| Parties | 24 UCC Rep.Serv. 1085 Robert T. MILLER, d/b/a Landscapers Environmental Contractors, Appellant, v. Weston E. JUNG and Janice L. Jung, Husband and Wife, Appellees. |
| Court | Florida District Court of Appeals |
Charles J. Cheves, Jr., of Cheves & Rapkin, Venice, for appellant.
No appearance for appellees.
A landscaper received a check for an amount less than the account stated on his bill. The check had the words "LANDSCAPING PAID IN FULL" printed on the bottom left corner. On the top of the reverse side were handwritten the words "cashing of this check constitutes release and waiver of any lien." Below this condition the payee typed the words "negotiated by named payees under protest and with reservation of all their rights" and negotiated the check.
The trial court ruled that receipt of a check so conditioned on its face required the payee to notify the drawer of the check that his acceptance was under protest or reservation of rights Prior to negotiation.
We hold that Section 671.207, Florida Statutes (1977) precludes the conclusion reached by the trial court.
That section, in pertinent part, provides as follows:
Performance of acceptance under reservation of rights. A party who with explicit reservation of rights . . . assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as "without prejudice," "under protest" or the like are sufficient.
Section 671.207 is a part of the Uniform Commercial Code. The 1972 official text comments to § 1-207, promulgated as an aid to construction by the American Law Institute and National Conference of Commissioners of Uniform State Laws, provides in part that:
The section provides machinery for the continuation of performance along the lines contemplated by the contract despite a pending dispute, by adopting the mercantile device of going ahead with delivery, Acceptance, or payment "without prejudice," "under protest," "under reserve," "with reservation of all our rights," and the like. All of these phrases completely reserve all rights within the meaning of this section. (Emphasis supplied.)
To require actual notification prior to negotiation would eviscerate the purpose of the section, which should allow a party to negotiate checks so conditioned on their face without gambling with his right to demand the balance due at a later time. Section 671.207, Florida...
To continue reading
Request your trial
-
Horn Waterproofing Corp. v. Bushwick Iron & Steel Co., Inc.
...Material Corp. v. Gateway Plumbing, 694 S.W.2d 762 (Mo.Ct.App.); Bivens v. White Dairy, 378 So.2d 1122 (Ala.Civ.App.); Miller v. Jung, 361 So.2d 788 (Fla.Ct.App.); Kilander v. Blickle Co., 280 Or. 425, 571 P.2d 503; Scholl v. Tallman, 247 N.W.2d 490 (S.D.); Baillie Lbr. Co. v. Kincaid Carol......
-
County Fire Door Corp. v. C.F. Wooding Co.
...Jahn v. Burns, 593 P.2d 828, 830 (Wyo.1979); contra, Bivins v. White Dairy, 378 So.2d 1122, 1124 (Ala.Civ.App.1979); Miller v. Jung, 361 So.2d 788, 789 (Fla.App.1978); Majestic Building Material Corporation v. Gateway Plumbing, 694 S.W.2d 762, 765-66 (Mo.App.1985); Braun v. C.E.P.C. Distrib......
-
Flambeau Products Corp. v. Honeywell Information Systems, Inc.
...the common law of accord and satisfaction, see Bivins v. White Dairy, 378 So.2d 1122, 1124 (Ala.Civ.App.1979) (dictum); Miller v. Jung, 361 So.2d 788, 789 (Fla.App.1978); Kilander v. Blickle Co., 280 Or. 425, 429, 571 P.2d 503 (1977) (dictum); Braun v. C.E.P.C. Distributors, Inc., 77 App.Di......
-
Nelson v. Fire Ins. Exchange
...5-16(b), at 197-98 (2d ed. 1977); White & Summers, Uniform Commercial Code, sec. 13-21, 452-54 (1st ed. 1972). Contra Miller v. Jung (Fla.Dist.Ct.App.1978), 361 So.2d 788; Majestic Building Material Corp. v. Gateway Plumbing, Inc. (Mo.Ct.App.1985), 694 S.W.2d 762; Horn Waterproofing Corp. v......