Nardine v. Kraft Cheese Co.

• Decision Date: 27 January 1944
• Docket Number: 17167.
• Citation: 52 N.E.2d 634,114 Ind.App. 399
• Parties: NARDINE v. KRAFT CHEESE CO.
• Court: Indiana Appellate Court

52 N.E.2d 634

114 Ind.App. 399

NARDINE v. KRAFT CHEESE CO.

No. 17167.

Appellate Court of Indiana, in Banc.

January 27, 1944

Emison & Emison and Lewis & Lewis, all of Vincennes, for appellant.

Floyd L. Young, of Vincennes, for appellee.

FLANAGAN Judge.

For several years prior to August 24, 1941, the appellant, Lattie Nardine, a resident of Vincennes, Indiana, had operated a grocery in Lexington, Kentucky, under the name of Standard Market. During that time she had been an open account customer of appellee. In July 1941 she purchased from appellee 515 3/4 pounds of Longhorn cheese. After a short time a dispute developed as to this cheese. Appellant said it was spoiled when received and that appellee should take it back. Appellee said that appellant spoiled it trying to force cure it and therefore it could not be returned. This dispute continued until after appellant closed her business on August 24, 1941.

Thereafter letters were exchanged between the parties concerning settlement of appellant's account, whereby it developed that there were other differences as to items in the account. About October 1, 1941, appellee's Lexington manager went to Vincennes to discuss the account with appellant but they were unable to agree as to the amount appellant owed. The dispute concerning the shipment of longhorn cheese above referred to was continued at that conference.

On October 30, 1941, appellant wrote appellee the following letter:

"Enclosed please find check in the amount of One Hundred Forty Six Dollars and one cent ($146.01) which according to our records pays my account in full.

"You will notice that I have taken a 10¢ per lb deduction on the 515- /4 lb. bad longhorn cheese, that I received from you. We are still at quite a loss on this cheese, as we really had to sacrifice it to get rid of it.

"In regard to the balance on your statement of overcharges and deductions, I wish to advise that I find it impossible to check up on this as they are so old. I feel that if the deductions were not in order, that I should have been notified at the time they were taken from the checks. As you told me, these were left over from before the time you took over this account.

"We are sorry to have had to make the above deductions but I really feel that it is a just one. It has been a pleasure to do business with the Kraft Cheese Company at Lexington, and I want to thank you for all past favors.

"With best regards to you, I remain,"

Enclosed with the letter was a check for $146.01 marked, "This pays my account in full to date". After receiving the letter and check appellee mailed the check to the Vincennes bank on which it was drawn for certification. The bank certified the check and returned it to appellee who still retains it.

Thereafter appellee brought this action against appellant seeking to recover on account for the balance it claimed due after deducting the sum of $146.01. Appellant answered among other things that there had been an accord and satisfaction. Trial resulted in judgment for appellee in the sum of $87.88 and this appeal followed. The sufficiency of the evidence is properly challenged.

When the holder of a check has it certified by the bank on which it is drawn the drawer is discharged and the debt becomes that of the bank. 7 Am. Juris., pages 411 and 412. See also discussion in Born v. First Nat. Bank of Indianapolis, 123 Ind. 78, 24 N.E. 173, 7 L.R.A. 442, 18 Am.St.Rep. 312. By having the check certified appellee accepted it. O'Brien v. American Agr. Chemical Co., 1916, 2d Cir. 229 F. 387. If it was tendered in full payment of a claim which was unliquidated or concerning which a bona fide dispute existed, the...