Mobley v. Fulton Roofing Co.

• Decision Date: 27 February 1985
• Docket Number: Nos. 69081,69082,s. 69081
• Citation: 327 S.E.2d 540,173 Ga.App. 563
• Parties: MOBLEY v. FULTON ROOFING COMPANY. FULTON ROOFING COMPANY v. MOBLEY.
• Court: Georgia Court of Appeals

Page 540

327 S.E.2d 540

173 Ga.App. 563

MOBLEY v. FULTON ROOFING COMPANY.

FULTON ROOFING COMPANY v. MOBLEY.

Nos. 69081, 69082.

Court of Appeals of Georgia.

Feb. 27, 1985.

L. Spencer Gandy, Jr., Atlanta, for appellant.

Ezra B. Jones, W. Dennis Summers, Atlanta, for appellee.

POPE, Judge.

Plaintiff Richard Mobley brought this action against defendant Fulton Roofing Company, plaintiff's former employer, seeking to recover an unspecified sum allegedly due him as part of his compensation. Defendant denied plaintiff's claim and filed a counterclaim alleging in Count I plaintiff's tortious interference with defendant's business, and in Count II that plaintiff was mistakenly overpaid upon his leaving defendant's employ. Defendant moved for summary judgment on plaintiff's claim and Count II of its counterclaim, and, following a hearing on the matter, the trial court granted the motion as to plaintiff's claim against defendant and denied the motion as to defendant's counterclaim. Case No. 69081 is plaintiff's appeal from the grant of summary judgment against him on his claim against defendant. Case No. 69082 is defendant's cross-appeal from the denial of summary judgment on Count II of its counterclaim against plaintiff.

Case No. 69081

1. The trial court made the following findings of fact: "The plaintiff was employed by the Defendant in 1979 as a repairman under an oral employment contract. The Plaintiff contended that he was to be paid commission based on the 'gross profit' of the repair division of the defendant company. The Defendant contended that the commission of the Plaintiff was based on the 'net profit' of the repair division. Plaintiff defined 'gross profit' to be sales less the costs of material and labor. The Defendant defined 'net profit' as sales less material, labor, overhead, taxes and insurance, and charges for the Plaintiff's company truck together with gasoline expenses. The deposition of the Plaintiff together with the business records of the Defendant show that from May of 1980 when the Plaintiff first received commissions from the company until his resignation in April of 1983, his commissions were calculated by deducting [those items contained in Defendant's definition of 'net profit.'] The record ... further shows that the Plaintiff reviewed the books and records of the company every month or two. The Plaintiff met with representatives of the Defendant when his commissions were calculated and [although he did not 'understand' why '[t]here were just loads of extra charges that I wasn't aware of that would be charged against me upon that agreement,'] accepted his commission checks over a three-year period. In April of 1983 when the Plaintiff received his last commission check from the Defendant, he again met with representatives of the Defendant to compute his final commission check." In an affidavit in support of its motion for summary judgment, defendant averred that this check was "for all of the commissions due [plaintiff] through December 31, 1982," and that no further commissions are yet due plaintiff for 1983. At the April 1983 meeting plaintiff was given a ledger sheet which showed how the amount of his final commission check was computed. The ledger sheet showed deductions as per defendant's definition of "net profit." The plaintiff accepted this final check, albeit "reluctantly."

It has long been the law in this state that "[w]hen a creditor receives and retains a sum of money from his debtor less than the amount actually due him with the understanding, either express or implied, that it is received by him in satisfaction of his claim or demand, he cannot thereafter treat it as a nullity and recover the balance, and this is so whether his claim or demand be disputed or undisputed, liquidated or unliquidated...." Rivers v. Cole Corp., 209 Ga. 406, 73 S.E.2d 196 (1952). "An accord and satisfaction occurs 'if a creditor tenders to his debtor a sum of money, though it be less than the amount actually owed, and the tender is made upon the condition, express or implied, that it satisfies the entire debt, and ... the creditor accepts the tender ...' [Cit.] ... An accord and satisfaction also occurs with 'the delivery and acceptance of a check as a stated amount in full and complete settlement of a claim, whether the amount of the claim is established or uncertain ...' [Cit.] It is not necessary that a check or the accompanying correspondence contain magic words such as 'payment in full,' 'in full consideration,' or 'in final payment' if there is some other documentary evidence to show what the check is intended to cover, i.e., itemization of deductions from the balance alleged to be due. [Cit.] An accord and satisfaction is itself a contract which requires a meeting of the minds in order to render it valid and binding. [Cits.] As a general rule, whether there is an accord and satisfaction is a jury question. [Cit.]" Commercial Union Assur. Co. v. Southeastern Ventilating, 159 Ga.App. 443, 445-46, 283 S.E.2d 660 (1981). However, when the movant for summary judgment on this issue presents evidence which...