Prentzas v. Prentzas, 605

• Decision Date: 19 July 1963
• Docket Number: No. 605,605
• Citation: 260 N.C. 101,131 S.E.2d 678
• Parties: Louis N. PRENTZAS v. Helen J. PRENTZAS, Administratrix of John N. Prentzas, Deceased, Helen J. Prentzas, Nicholas J. Patterson and Gus J. Patterson.
• Court: North Carolina Supreme Court

Page 678

131 S.E.2d 678

260 N.C. 101

Louis N. PRENTZAS v. Helen J. PRENTZAS, Administratrix of John N. Prentzas Deceased, Helen J. Prentzas, Nicholas J. Patterson and Gus J. Patterson.

No. 605

Supreme Court of North Carolina.

July 19, 1963

Andrew Joyner, Jr., and Adams, Kleemeier, Hagan & Hannah by Charles T. Hagan, Jr., Greensboro, for plaintiff-appellee.

Smith, Moore, Smith, Schell & Hunter by David M. Clark, Greensboro, for defendants-appellants.

RODMAN, Justice.

The court instructed the jury if it found the facts to be as all the evidence tended to show, it should answer the first issue (statute of limitations) in the negative. Defendants assign this peremptory instruction as error. The partnership existing between Louis and John created a fiduciary relationship imposing on John, the managing partner, the duty upon request of Louis, to render a full and accurate account of partnership affairs. Casey v. Grantham, 239 N.C. 121, 79 S.E.2d 735. The three-year statute of limitations was applicable to plaintiff's claim against John or his estate, G.S. § 1-52, but the statute did not begin to run until Louis had notice of John's termination of the partnership relationship and his refusal to account. Solon Lodge No. 9 Knights of Pythias Co. v. Ionic Lodge, 247 N.C. 310, 101 S.E.2d 8; Teachey v. Gurley, 214 N.C. 288, 199 S.E. 83; Greenleaf v. Land & Lumber Co., 146 N. C. 505, 60 S.E. 424; Robertson v. Dunn, 87 N.C. 191.

The evidence is that Louis made requests for an accounting and even threatened to bring suit to compel an accounting. These requests and threats were not rejected but were met with requests for time in which to prepare the account. Not until 30 March 1950 did Louis know that John would not perform his duty and render a statement showing the status of the partnership. John died within three years of the date Louis learned that John would not account. John's death suspended the running of the statute until the qualification of an administratrix and gave him one year from that date in which to bring his suit. G.S. § 1-22. Helen qualified as administratrix 12 November 1952. This action was begun 10 November 1953. The cause of action, if the jury accepted the evidence as true, did not arise until 30 March 1950. If that is the date on which the cause of action accrued, it follows as a matter of law that the action is not barred. We find no error in the instruction given the jury on the first issue.

We find nothing in the record which would support an affirmative answer to defendants' plea of laches. It follows that the court properly refused to submit that question to the jury.

Defendants' plea of accord and satisfaction 'is recognized as a method of discharging a contract, or settling a cause of action arising either from a contract or a tort, by substituting for such contract or cause of action an agreement for the satisfaction thereof, and an execution of such substitute agreement.' Walker v. Burt, 182 N.C. 325, 109 S.E. 43; Eastern Steel Products Corp. v. Chestnutt, 252 N.C. 269, 113 S.E.2d 587; Bizzell v. Bizzell, 247 N.C. 590, 101 S.E.2d 668; Allgood v. Wilmington Savings & Trust Co., 242 N.C. 506, 88 S.E.2d 825; 1 Am.Jur.2d 301.

The word 'agreement' implies the parties are of one mind--all have a common understanding of the rights and obligations of the others--there has been a meeting of the minds. Richardson v. Greensboro Warehouse & Storage Co., 223 N.C. 344, 26 S.E.2d 897, 149 A.L.R. 201; Sprinkle v. Ponder, 233 N.C. 312, 64 S.E.2d 171; Allgood v. Wilmington Savings & Trust Co., supra; McCraw v. Llewellyn, 256 N.C. 213, 123 S.E.2d 575. Agreements are reached by an offer by one party and an acceptance by the other. This is true even though the legal effect of the acceptance may not be understood. Wright v. McMullan, 249 N.C. 591, 107 S.E.2d 98; McGill v. Bison Fast Freight, Inc., 245 N.C. 469, 96 S.E.2d 438; Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488.

Ordinarily when a creditor calls on his debtor or a beneficiary calls on his trustee for an accounting and settlement and the demand is met with an offer of money or property in full discharge of debtor's or trustee's obligation, an acceptance and retention of the thing tendered constitutes a complete discharge even though the sum or property received is less than the amount actually owing. G. S. § 1-540; Fidelity & Casualty Co. v. Nello L. Teer Co., 250 N.C. 547, 109 S.E. 2d 171; Moore v. Greene, 237 N.C. 614, 75 S.E.2d 649; Durant v. Powell, 215 N.C. 628, 2 S.E.2d 884; DeLoache v. DeLoache, 189 N.C. 394, 127 S.E. 419; 1 C.J.S. Accord and Satisfaction § 20, p. 487.

Here plaintiff alleges the deed of 30 March 1950 to him from John and Helen was tendered 'in full of plaintiff's share of all property then belonging to their partnership account.' Plaintiff alleged both the conditional offer and his refusal to accept the offer as made.

Defendants' allegation that the offer was accepted presents the sole controverted phase of their plea of accord and satisfaction. To support their assertion of acceptance they contend: Plaintiff has retained the deed and has not...