Risk v. Wells Market Service, Inc.
| Decision Date | 28 February 1961 |
| Docket Number | J,No. 14,14 |
| Citation | 362 Mich. 414,107 N.W.2d 776 |
| Parties | Edward F. RISK, Plaintiff and Appellant, v. WELLS MARKET SERVICE, INC., a Michigan corporation, Defendant and Appellee. anuary Term. |
| Court | Michigan Supreme Court |
Goodman, Crockett, Eden & Robb, Detroit, Richard M. Goodman, Detroit, of counsel, for appellant.
Cross, Wrock, Miller, Vieson & Kelley, Detroit, for appellee.
Before the Entire Bench.
Plaintiff commenced suit to recover balance claimed due on a $15,000 bonus promised him by defendant while he was in defendant's employ. A jury verdict for plaintiff was set aside by the trial court and plaintiff appeals.
Plaintiff commenced working for defendant in January, 1952, as a driver-salesman and in September of that year was promoted to branch manager in charge of the Detroit and Toledo offices. Defendant's home office was in Louisville, Kentucky, and it sold household wares to the Kroger Company.
Plaintiff was an industrious worker and sales increased between 1953 and 1957. He was given a bonus each year, which in 1956 amounted to $7,525. In January, 1957, plaintiff decided to leave defendant's employ and met defendant's president, Lee Wells, in Chicago. Plaintiff testified he was promised a bonus of $15,000 if he continued in defendant's employ and if sales increased over the previous year. There is no dispute but that sales increased, but defendant's president denied ever having promised a bonus of $15,000.
Plaintiff also testified that in September, 1957, he went to defendant's home office in Louisville and president Wells told him the corporation could only pay him $8,185 as a bonus and that he could 'take it or leave it'; that there would be no further bonuses; that his salary would be increased from $125 per week to $200 per week, and that from then on he would receive a commission of only 1/4 of 1% on sales instead of 1%.
President Wells testified that he never promised plaintiff a $15,000 bonus; that at the September meeting plaintiff was told a $10,000 bonus would be paid, from which other employees were to receive $1,800 and the balance was to go to plaintiff; that plaintiff said he thought he was going to get more.
On plaintiff's return to Detroit he received a net check for $6,711.70, the amount of the bonus remaining after deductions, which he cashed and retained. He continued in defendant's employ for another month and then left. He thereafter commenced this suit.
Defendant contends the payment of the $8,185 was payment of a disputed amount and that plaintiff's acceptance and retention of the proceeds was an accord and satisfaction.
Plaintiff contends this was a liquidated claim as determined by the jury verdict and that such claim could not be discharged by payment of a lesser amount.
The trial court in setting aside the verdict for plaintiff held there was a dispute as to the amount owing and that the payment of $8,185 and its acceptance by plaintiff was an accord and satisfaction.
In Lafferty v. Cole, 339 Mich. 223, 228, 63 N.W.2d 432, 434, we said:
"The applicable rule of law is, if the tender is in full satisfaction of an unliquidated claim, the amount of which is in good faith disputed by the debtor, and the creditor is fully informed of the condition accompanying acceptance, an accord and satisfaction is accomplished if the money so tendered is retained; for there can be no severance of the condition from acceptance and it avails the creditor nothing to protest and notify the debtor that the amount tendered is credited on the claim and not accepted in full satisfaction."
In Goldsmith v. Lichtenberg, 139 Mich. 163, 165, 102 N.W. 627, 628, the Court said:
'It has been repeatedly held that a new and valuable consideration is required to support the agreement of a creditor to accept from his debtor as payment in full a sum less than that admitted to be owing.'
It was stated in the case of Monroe v. Bixby, 330 Mich. 353, 357, 47 N.W.2d 643, 645, that:
"We have many times held that part payment of a past-due, liquidated, and undisputed claim, even though accepted in full satisfaction thereof, does not operate to discharge the debt, but constitutes a...
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International Union, United Auto., Aerospace, and Agr. Implement Workers of America (UAW) v. Yard-Man, Inc.
...be a disputed claim, 18 a substituted performance agreed upon and accomplished, and valuable consideration. E.g., Risk v. Wells, 362 Mich. 414, 420, 107 N.W.2d 776 (1961); 262 (1933). See also Keppard v. International Harvester Co., 581 F.2d 764 (9th Cir.1978) (applying California law); Bro......
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Hoffa v. Fitzsimmons, Civ. A. No. 76-0566.
...past payment of an undisputed claim does not operate to discharge a debt, and is only a "payment pro tanto." Risk v. Wells Market Service, Inc., 362 Mich. 414, 107 N.W.2d 776 (1961); Monroe v. Bixby, 330 Mich. 353, 47 N.W.2d 643 (1951). It further follows from what has been stated that defe......
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Baum's Dairy Farms, Inc. v. U.S.
...no good faith dispute over the amount of the debt, there can be no accord and satisfaction in this case. See Risk v. Wells Market Serv., Inc. ., 362 Mich. 414, 107 N.W.2d 776 (1961). Accordingly, this court will decline to discharge plaintiffs' indebtedness under the doctrine of accord and ......
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Petition of Carson, 2
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