The Toledo Edison Co. v. Roberts.

• Decision Date: 28 May 1934
• Parties: The Toledo Edison Co. v. Roberts.
• Court: Ohio Court of Appeals

197 N.E. 500

50 Ohio App. 74

The Toledo Edison Co. v. Roberts.

Court of Appeals of Ohio

May 28, 1934

Accord and satisfaction - Demand unliquidated, when - Receiving payment by check constitutes accord and satisfaction, when - No jury question as to existence and character of dispute when.

1. In an action involving the question of accord and satisfaction where it is admitted that one of two specified sums is due but there is a dispute as to what is the proper amount, the demand is regarded as unliquidated.

2. Where, as the result of a bona fide dispute as to the amount due, the debtor draws a check payable to the creditor, on the back of which check is printed a statement that the endorsement thereon is an acknowledgment of payment to date for services rendered, and the creditor accepts the check erases the printed matter, endorses the check and draws the money thereon, there is an accord and satisfaction.

3. Where all of the evidence on both sides indicates the existence of a bona fide dispute between the parties on the matter in issue, there is no question for the jury as to the existence and character of the dispute.

Court of Appeals for Lucas county.

Messrs Tracy, Chapman & Welles, for plaintiff in error. Messrs. Fritsche & Winchester, for defendant in error.

RICHARDS J. In the Court of Common Pleas Robert Roberts commenced an action to recover $875.64, claimed to be due him as commission as a salesman for The Toledo Edison Company. The trial resulted in a verdict and judgment in his favor in the amount of $994.70.

The plaintiff in error insists that the trial court was in error in refusing to direct a verdict in its favor at the close of all the evidence; that there were errors in the charge, and that the court erred further in mod- ifying instructions to the jury which had been given before argument at the request of the company. The answer was a general denial and a plea of accord and satisfaction.

Roberts was employed by the company as a salesman at a commission of 9% on sales made by him for the company. This covered electrical materials, supplies, equipment and service, and this rate of compensation was claimed by him to apply to all sales except Mazda lamp bulbs. This employment continued for a considerable period of time, and then it developed that a prospect existed for getting a contract with The Toledo Driving Park, Inc., in a large amount, for a very substantial quantity of material to be installed. Two contracts were ultimately made between The Toledo Edison Company and The Toledo Driving Park, Inc., the first, in the amount of $15,722, and then, about six weeks later, another in the amount of $4,203.82. When the possibility of securing these contracts arose another representative of the company in the department in which Roberts was working looked after the making of plans and specifications, computations, etc., as to the costs, and he installed poles, wires and lights for demonstration purposes, and took part in the negotiations looking to the securing of the contracts. It does not appear that Roberts alone could have secured these contracts. In making computation sheets, and in determining what price to ask, the amount of compensation which was to be paid to Roberts on these contracts was stated in the sheets as 5% and Fanning, the representative of The Toledo Edison Company, testifies that he showed these sheets to Roberts and that Roberts knew the amount of his commission on these contracts was stated on the sheets to be 5% in the event the contracts were secured. Fanning testified further that Roberts at that time made no objection to his commission being 5% on these large con- tracts, but continued to assist in securing and closing the contracts, with the...