Quaintance Associates, Inc. v. PLM, Inc.

• Decision Date: 16 April 1981
• Docket Number: No. 80-1296,80-1296
• Citation: 420 N.E.2d 567,95 Ill.App.3d 818,51 Ill.Dec. 153
• Parties: , 51 Ill.Dec. 153 QUAINTANCE ASSOCIATES, INC., a Delaware corporation, Plaintiff-Appellant, v. PLM, INC., a foreign corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 567

420 N.E.2d 567

95 Ill.App.3d 818, 51 Ill.Dec. 153

QUAINTANCE ASSOCIATES, INC., a Delaware corporation Plaintiff-Appellant, v. PLM, INC., a foreign corporation, Defendant-Appellee.

No. 80-1296.

Appellate Court of Illinois, First District, Fifth Division.

April 16, 1981.

Foran, Wiss & Schultz, Chicago (Stephan A. Gorman, Chicago, of counsel), for plaintiff-appellant.

James N. Vail, Chicago, for defendant-appellee.

MEJDA, Justice:

This is an appeal from the trial court's order which granted defendant's motion for judgment on the pleadings. (Ill.Rev.Stat.1979, ch. 110, par. 45(5).) The sole issue presented for review is whether the pleadings raise any issue of material fact which would preclude the entry of judgment on the pleadings.

The verified pleadings consist of the complaint, answer and reply. The complaint contains the following allegations. Plaintiff is a corporation in the business of management consulting and executive recruiting. On March 8, 1977, plaintiff and defendant entered into an oral agreement whereby plaintiff agreed to conduct an executive recruiting assignment for defendant for the purpose of identifying and presenting persons suitably qualified for employment as defendant's controller for the latter's consideration and evaluation. Plaintiff was to receive, in addition to expenses, a fee of 30 percent of the anticipated first year earnings of any person hired as defendant's controller, or $60 per hour, whichever was greater. The anticipated first year earnings of defendant's controller was understood and agreed to be $30,000. The parties also agreed that defendant's obligation to compensate plaintiff was in no way conditioned upon defendant actually employing any candidate presented by plaintiff. Plaintiff's letter dated July 13, 1977, signed by Guy W. Simpler (attached as an exhibit) admitted plaintiff had not produced the successful candidate and stated that the final billing was based on the contract rather than time which the writer found most advantageous to defendant. Thereafter and until June 30, 1977, plaintiff fully performed its obligations and presented to defendant suitably qualified persons and became entitled to at least $9000 plus expenses of $808.61; that defendant paid $6060.48 in partial satisfaction and that $3748.13 remains due. Plaintiff's demands for payment have been refused, wherefore plaintiff prays judgment for $3748.13 plus interest and costs.

The verified answer admitted that defendant had orally engaged plaintiff to recruit a qualified person for employment as defendant's controller. However, it denied an agreement to pay plaintiff any sums for persons not recruited by plaintiff or $60 per hour for its services and denied that there was an expressed agreement that compensation was not conditioned upon plaintiff's presenting a qualified candidate for the position of controller. The answer also denied that plaintiff fully performed its obligations or presented any person suitably qualified for employment as defendant's controller; that plaintiff was entitled to $9000 plus expenses or any amount; denied partial satisfaction and asserted the affirmative defense of accord and satisfaction in that plaintiff accepted its check dated July 19, 1977, for $6060.48 in accordance with an agreement of July 15, 1977, in full satisfaction of the instant claim; and that at the time of payment, defendant in good faith disputed its liability to plaintiff. The answer finally alleged that plaintiff typed the words "negotiation does not release claim of payee against PLM, Inc." on the back of defendant's check without defendant's knowledge or authority. Copies of the letter dated July 15, 1977, and of the check were attached to the answer.

Plaintiff's verified reply to the answer denied the payment in full satisfaction or that defendant in good faith disputed liability, but admitted the allegations as to the typewritten words on the check without defendant's knowledge or authority.

Thereafter, defendant filed a motion for judgment on the pleadings alleging plaintiff's acceptance of the check to be an accord and satisfaction. Plaintiff appeals from the order which sustained the motion.

OPINION

Plaintiff contends that the pleadings clearly establish an issue of material fact and that, therefore, it was error to sustain a motion for judgment on the pleadings. It argues that virtually every substantive factual allegation in plaintiff's complaint was denied and put into issue by defendant's answer. Plaintiff also asserts that it specifically denied, in its verified reply, defendant's affirmative defense of accord and satisfaction. Defendant maintains that an accord and satisfaction was established as a matter of law which extinguishes the original demand and bars an action thereon.

Section 45(5) of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 45(5)) provides that "(a)ny party may seasonably move for judgment on the pleadings." This motion requires an examination of the pleadings to determine if there is an issue of fact or if the controversy can be resolved solely as a matter of law. (David v. J. Elrod Realtors on Devon, Inc. (1979), 75 Ill.App.3d 449, 31 Ill.Dec. 381, 394 N.E.2d 583; Affiliated Realty & Mortgage Co. v. Jursich (1974), 17 Ill.App.3d 146, 308 N.E.2d 118.) This motion admits all facts well pleaded and all fair inferences to be drawn from the pleadings of the opposing party (Maywood Sportservice, Inc. v. Maywood Park Trotting Association, Inc., (1976), 40 Ill.App.3d 1028, 353 N.E.2d 295; James Coates Motors, Inc. v. Avis Rent-A-Car System, Inc. (1974), 19 Ill.App.3d 919, 312 N.E.2d 291) and submits to the court that there is no issue of fact to be tried and that the moving party is entitled to judgment as a matter of law. (Affiliated Realty & Mortgage Co. v. Jursich; Tompkins v. France (1959), 21 Ill.App.2d 227, 157 N.E.2d 799.) If the pleadings place one or more material facts in issue, then a motion for judgment on the pleadings should be denied. Maywood Sportservice, Inc.

Plaintiff, relying on Allis-Chalmers Credit Corp. v. McCormick (1975), 30 Ill.App.3d 423, 331 N.E.2d 832, argues that defendant's denial of the amount due pursuant to their oral agreement precludes the entry of judgment on the pleadings. However, Allis-Chalmers is distinguishable. There the defendant denied any indebtedness to the plaintiff. Here, defendant does not deny that plaintiff is entitled to some compensation for services rendered in its attempt to recruit a suitably qualified candidate for the position of defendant's controller, but merely disputes the amount due for such services. In addition, in Allis-Chalmers, defendant's affirmative defense was found to be without merit.

While plaintiff correctly asserts that the answer and reply raised an issue as to the exact terms of the parties' oral agreement and the amount due, such issues are not material. There is no dispute that defendant entered into an oral agreement with plaintiff to assist in the recruitment of a prospective employee. While the parties do disagree as to the exact terms of the oral agreement, the preliminary issue to be determined is whether plaintiff's acceptance of defendant's check constituted an accord and satisfaction.

An accord is an agreement or settlement of an existing dispute, controversy or demand which presupposes a disagreement as to the amount due. (Sears, Sucsy & Co. v. Insurance Company of North America (N.D.Ill.1974), 392 F.Supp. 398, 1 Ill. L. & Prac. Accord & Satisfaction § 2 at 156 (1953).) However, the partial payment of a fixed and certain demand which is due and not in dispute is no satisfaction of the whole debt even where the creditor agrees to receive a part for the whole and gives a receipt for the whole demand. (Upper Avenue National Bank of Chicago v. First Arlington National Bank of Arlington Heights (1980), 81 Ill.App.3d 208, 36 Ill.Dec. 525, 400 N.E.2d 1105; In re Estate of Cunningham (1924), 311 Ill. 311, 142 N.E. 740; Janci v. Cerny (1919), 287 Ill. 359, 122 N.E. 507; 1 Ill. L. & Prac. Accord & Satisfaction § 22 at 168 (1953).) But, where there is a bona fide dispute as to the amount due, it makes no difference that the...