Van Sistine v. Tollard

Decision Date26 March 1980
Docket NumberNo. 79-1041,79-1041
Citation291 N.W.2d 636,95 Wis.2d 678
Parties, 28 UCC Rep.Serv. 1274 John VAN SISTINE, d/b/a The Van Sistine Company, Plaintiff-Appellant, v. Jan TOLLARD, Defendant-Respondent.
CourtWisconsin Court of Appeals

R. M. Gonyo, Berlin, for plaintiff-appellant.

Timothy D. Robinson, Berlin, for defendant-respondent.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

GARTZKE, Presiding Judge.

This is an action for $1,754.25, claimed to be the unpaid balance due for goods and services provided by plaintiff-appellant, a siding contractor, to the defendant. The answer pleaded the defense of an accord and satisfaction. The court dismissed the complaint after a trial without a jury. 1 We affirm.

The issue is whether plaintiff is barred from recovery because he cashed defendant's checks marked "Paid in full" but endorsed the checks "under protest & without prejudice."

The court found that the parties entered two written contracts for improvements to defendant's house. The first contract provides that plaintiff will remove the old siding from defendant's house, repair the existing walls and make them plumb, install foil prior to installing new siding, install the new siding, cover the overhang with aluminum and install aluminum channels around the windows and doors, all for $2,675. The second contract provides that the plaintiff will install a kitchen picture window, install slider windows furnished by the defendant, install windows in the bathroom and hallway, reposition an air conditioner, a kitchen range and a kitchen cabinet and install stucco siding on the front of the house accented with cedar, and perform certain finishing, all for $1,300.

The court found that the first contract was satisfactorily performed but that the parties agreed to changes in the second contract and to additional work. It is those changes and that work which are in dispute.

Defendant testified that the additional work consisted of the installation of shutters and work in the bathroom, all of which she believes has a value of $698.42. Defendant therefore contends that plaintiff was entitled to the contract prices, a total of $3,975, plus $698.42, or $4,673.42 in all.

Plaintiff testified that the defendant ordered another bathroom window and requested twice that plaintiff reposition the kitchen air conditioner, fix a loose kitchen cabinet, install additional and different cedar accent and white bricks, rewire a kitchen wall and install new drain fittings, fixtures, a shower unit, a ceiling, a medicine cabinet and other items in a bathroom and to rewire the bathroom. Plaintiff claims that the total due him on the two contracts plus the changes and additions is $6,427.67.

The court found that the defendant paid the plaintiff $2,000 when the work began and later delivered to the defendant three additional checks for $180, $1,975 and $518.42, a total of $4,673.42. Each check was drawn by a credit union and made payable to the plaintiff and the defendant. The check for $180 bears an endorsement by defendant reading as follows: "Paid in full. Labor & materials (Shutters) on property located at 614 Pine Street, Pine River, WI." The check for $1,975 bears the following endorsement by defendant: "Paid in full Balance due on remodeling contracts on property located at 614 Pine Street, Pine River, WI 54965." The third check for $518.42 was endorsed by defendant, "Paid in full. Bathroom remodeling. All labor & materials. 32 hours labor X.$9.00 hr. On property located at 614 Pine Street, Pine River, WI 54965." Plaintiff endorsed each check as follows: "The Van Sistine Company cashes this check under protest & without prejudice."

The court concluded that a genuine dispute existed as to performance of the second contract and as to the changes and additions ordered. The court held that the offer and acceptance of the three checks constituted an accord and satisfaction which precluded the plaintiff from further recovery.

An accord and satisfaction is a contract to discharge a disputed claim and constitutes a defense to an action to enforce the claim. Hoffman v. Ralston Purina Co., 86 Wis.2d 445, 453, 273 N.W.2d 214 (1979).

The contract of accord and satisfaction arises if the obligor offers a performance in satisfaction of a disputed claim, the creditor understands that full satisfaction is intended, and the creditor accepts the offer, whether by word or deed. Hoffman, supra.

The three checks as endorsed by defendant constituted her offer to plaintiff to pay the total of those checks in satisfaction of his disputed claim against defendant for the balance due plaintiff. The plaintiff creditor cashed the check promptly and "under protest & without prejudice." Those words manifested plaintiff's intent not to accept the offer. Plaintiff therefore contends that no accord and satisfaction arose, citing Sprinkmann Sons Corp. v. Bishopric Products Co., 340 F.Supp. 148 (E.D.Wis.1972), which held that an issue continued to exist as to whether payment under somewhat similar circumstances 2 constituted an accord and satisfaction. Sprinkmann, however, was decided prior to Hoffman.

Hoffman held that where a check was offered in full settlement of a disputed claim and the creditor remained silent but retained the uncashed check for an unreasonable time, that silence and acquiescence was manifestation of assent which gave rise to an accord and satisfaction. The court held that there was no distinction between cashing a check or retaining it for an unreasonable time under the following rule:

Actions of the offeree can constitute acceptance even when accompanying words express a contrary intent. When a creditor receives a check offered in full settlement of an obligation and cashes the check, but simultaneously writes to the debtor that he refuses to accept the check as in full satisfaction but will apply it only in reduction of the debt, the action of cashing the check will be considered an acceptance of the offer. 86 Wis.2d at 454, 273 N.W.2d at 217 (citation omitted).

The act of cashing the checks was an acceptance of defendant's offer and gave rise to an accord and satisfaction under the law of this state, notwithstanding plaintiff's endorsement to the contrary.

Plaintiff nevertheless contends that he is not barred from recovering the balance he claims is due. He relies upon sec. 1-207 of the Uniform Commercial Code (sec. 401.207, Stats.) which provides:

A party who with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as "without prejudice", "under protest" or the like are sufficient.

The jurisdictions which have considered the effect of sec. 1-207 of the code upon the doctrine of accord and satisfaction are not unanimous.

Scholl v. Tallman, S.D., 247 N.W.2d 490 (1976); Baillie Lumber Co....

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29 cases
  • Wickenhauser v. Lehtinen
    • United States
    • Wisconsin Supreme Court
    • June 29, 2007
    ...defects in the house and delay in completion of the project." Id., ¶¶ 1, 3. 11. The Linden court examined Van Sistine v. Tollard, 95 Wis.2d 678, 291 N.W.2d 636 (Ct. App.1980), which applied the predominant purpose test to a contract to install windows, install stucco siding, reposition appl......
  • Golden v. Den–Mat Corp.
    • United States
    • Kansas Court of Appeals
    • May 4, 2012
    ...or itemized billing of them frequently considered in assessing predominant purpose of mixed contract); Van Sistine v. Tollard, 95 Wis.2d 678, 685, 291 N.W.2d 636 (1980) (contract primarily for services where property owner supplied some of the siding to be installed on home and installer's ......
  • Acierno v. Worthy Bros. Pipeline Corp., 009
    • United States
    • United States State Supreme Court of Delaware
    • December 6, 1994
    ...A.D.2d 684, 481 N.Y.S.2d 125 (1984). See McKee Const. v. Stanley Plumbing, Mo.App., 828 S.W.2d 700 (1992); Van Sistine v. Tollard, App., 95 Wis.2d 678, 291 N.W.2d 636, 639 (1980). Furthermore, at least 31 states, other than Delaware, have amended UCC § 1-207 as part of the 1990 revision of ......
  • CG Schmidt Inc. v. Permasteelisa N. Am.
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • October 23, 2015
    ...with goods incidentally involved ... or is a transaction of sale, with labor incidentally involved...." Van Sistine v. Tollard, 95 Wis.2d 678, 685, 291 N.W.2d 636, 639 (Ct.App.1980). Applying the Linden factors, the Court finds that the thrust of the parties' negotiations related to the sal......
  • Request a trial to view additional results
1 books & journal articles
  • Ucc Section 1-207 on Full Payment Checks: Lawyers Beware
    • United States
    • Colorado Bar Association Colorado Lawyer No. 11-10, October 1982
    • Invalid date
    ...342, 167 S.E.2d 85 (1969) and Miller v. Jung, 361 S.2d 788 (Fla.2d DCA 1978)]; Wisconsin, Van Sistine v. Tollard, 195 Wis.2d 678, 291 N.W.2d 636 (1980); New Jersey, Chancellor, Inc. v. Hamilton Appliance Co., Inc., 175 N.J. Super. 345, 418 A.2d 1326 (1980); Florida, Eder v. Yvette B. Gervey......

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