NOTES OF DECISIONS

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Common law

Pennsylvania statute dealing with contractual performance under reservation of rights does not apply to use of final payment checks for accord and satisfaction of disputed claims, and thus does not supercede common-law defense of accord and satisfaction. Occidental Chemical Corp. v. Environmental Liners, Inc., E.D.Pa.1994, 859 F.Supp. 791. Accord And Satisfaction 11(3)

Under Florida law, section of the Uniform Commercial Code pertaining to performance or acceptance under a reservation of rights does not supersede common-law doctrine of accord and satisfaction. Burke Co. v. Hilton Development Co., N.D.Fla.1992, 802 F.Supp. 434. Accord And Satisfaction 11(3)

Acceptance of a check in full settlement of a disputed unliquidated claim without reservation operates as an accord and satisfaction discharging the claim, since theory underlying common-law rule of accord and satisfaction is that parties have entered into new contract discharging all or part of their obligations under original contract. Complete Messenger & Trucking Corp. v. Merrill Lynch Money Markets, Inc., N.Y.A.D. 1 Dept.1991, 565 N.Y.S.2d 794, 169 A.D.2d 609. Accord And Satisfaction 11(3)

Section of Uniform Commercial Code dealing with explicit reservations of rights would be narrowly interpreted since it was in derogation of common law. Sullivan v. Conant Valley Associates, Ltd., N.Y.Sup.1990, 560 N.Y.S.2d 617, 148 Misc.2d 483. Statutes 239

UCC provision regarding performance or acceptance under reservation of rights did not indirectly overrule the common-law doctrine of accord and satisfaction with respect to "payment in full" checks. Weidensaul v. Greenhouse Restaurant of Lawrence, Inc., Kan.App.1988, 762 P.2d 196, 13 Kan.App.2d 95. Accord And Satisfaction 11(3)

Common-law doctrine of accord and satisfaction has been superceded by the UCC section pertaining to performance or acceptance under reservation of rights. Ditch Witch Trenching Co. of Kentucky, Inc. v. C & S Carpentry Services, Inc., Ky.App.1991, 812 S.W.2d 171. Accord And Satisfaction 11(2)

Provision of uniform commercial code governing reservation of rights preempted common-law accord and satisfaction doctrine with respect to tender of full- payment check, particularly where plaintiffs would have risked loss of nearly five million dollars in refusing check for additional one and a quarter million dollars that they contended defendant owed them. Robinson v. Garcia, Tex.App.-Corpus Christi 1991, 804 S.W.2d 238, writ denied 817 S.W.2d 59, rehearing of writ of error overruled. Accord And Satisfaction 11(3)

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Purpose

Statute governing performance of acceptance under reservation of rights was intended to allow party to negotiate check which is conditioned on its face, such as by language stating that cashing of check constitutes release, without gambling with his right to demand balance due at later time. Miller v. Jung, Fla.App. 2 Dist.1978, 361 So.2d 788. Accord And Satisfaction 11(2)

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Law governing

Debtor's tender of "full payment" check was article three transaction, under McKinney's Uniform Commercial Code § 3-101 et seq., and was governed by McKinney's Uniform Commercial Code § 1-207 regardless of nature of contract underlying parties' commercial relationship. Horn Waterproofing Corp. v. Bushwick Iron & Steel Co., Inc., N.Y.1985, 497 N.Y.S.2d 310, 66 N.Y.2d 321, 488 N.E.2d 56. Accord And Satisfaction 11(2); Bills And Notes 164

The UCC section pertaining to performance or acceptance under reservation of rights, and found in the introductory article of the code, was intended to apply to transactions falling within any article of the code, including the article governing checks. Ditch Witch Trenching Co. of Kentucky, Inc. v. C & S Carpentry Services, Inc., Ky.App.1991, 812 S.W.2d 171. Accord And Satisfaction 11(2)

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Construction with other laws

Payment of contract debt by check or other commercial paper and its acceptance by creditor fall within reach of McKinney's Uniform Commercial Code § 1-207, whether underlying contract between parties be for purchase of goods, chattel paper or personal services, as use of negotiable instrument for purpose of payment or attempted satisfaction of contract debt is explicitly and specifically regulated by provisions of McKinney's Uniform Commercial Code § 3-101 et seq. Horn Waterproofing Corp. v. Bushwick Iron & Steel Co., Inc., N.Y.1985, 497 N.Y.S.2d 310, 66 N.Y.2d 321, 488 N.E.2d 56.

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Construction

"Performance" within section of the Uniform Commercial Code providing that party who, with explicit reservation of rights, performs or promises performance or assents to performance in manner demanded or offered by other party does not prejudice rights reserved, means "the fulfillment or accomplishment of a promise, contract or other obligation according to its terms," as distinguished from "payment." McKee Const. Co. v. Stanley Plumbing & Heating Co., Mo.App. S.D.1992, 828 S.W.2d 700, rehearing denied. Accord And Satisfaction 11(2)

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Commentary on law

Delaware study comment, which stated that Uniform Commercial Code (UCC) section on performance or acceptance under reservation of rights permits party who explicitly reserves rights in UCC transaction to accept performance without jeopardizing any remaining rights, did not indicate that enactment of UCC provision was intended to displace existing Delaware common-law doctrine of accord and satisfaction. Acierno v. Worthy Bros. Pipeline Corp., Del.Supr.1995, 656 A.2d 1085, revised, rehearing denied, on remand 1995 WL 654148. Accord And Satisfaction 11(3)

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Generally

Under Uniform Commercial Code (UCC), creditor may negate issuer's intent of full payment check by means of clear reservation of rights. Frangiosa v. Kapoukranidis, Vt.1993, 627 A.2d 351, 160 Vt. 237. Accord And Satisfaction 11(2)

When performance of sales contract has come to an end, Uniform Commercial Code section providing that party who, with explicit reservation of rights, performs or promises performance or assents to performance in manner demanded or offered by other party does not thereby prejudice rights reserved does not empower seller, as payee of negotiable instrument, to alter instrument by adding words of protest to check tendered by buyer on condition that it be accepted in full satisfaction of unliquidated debt. County Fire Door Corp. v. C.F. Wooding Co., Conn.1987, 520 A.2d 1028, 202 Conn. 277. Accord And Satisfaction 11(3)

Uniform Commercial Code (UCC) section addressing performance or acceptance under reservation of rights was applicable even though plaintiff's claim was for services, rather than goods, as defendants paid by check. Metropolitan Knitwear v. Trans World Fashions, Inc., N.Y.A.D. 1 Dept.1996, 649 N.Y.S.2d 702, 233 A.D.2d 241. Accord And Satisfaction 11(3)

The section of the Uniform Commercial Code which provides that a party who performs or promises performance or assents to performance with explicit reservation of rights does not thereby prejudice the rights reserved permits a party to accept whatever he can get by way of payment or performance without losing his rights to sue for the balance of the payment, so long as he explicitly reserves his rights. Ayer v. Sky Club, Inc., N.Y.A.D. 1 Dept.1979, 418 N.Y.S.2d 57, 70 A.D.2d 863, appeal dismissed 422 N.Y.S.2d 68, 48 N.Y.2d 705, 397 N.E.2d 758. Accord And Satisfaction 7(1)

Uniform Commercial Code (UCC) provision allowing reservation of rights by party performing or promising performance applied to transaction in which owner of real property paid certain closing costs to assignees of deed of trust, since underlying transaction was discharge of note and deed of trust securing it, and payment was completed by check after attempted reservation of rights. Margason v. Roberts, Colo.App.1995, 919 P.2d 818, modified on denial of rehearing, certiorari denied. Accord And Satisfaction 11(3)

Where there was no language in correspondence, allegedly proposing full and complete resolution of whatever claims automobile buyer might have had against dealership, indicating check for $113.90 from the dealership was tendered in full satisfaction of all such potential claims, there was no need for the buyer to endorse the check "with reservation of rights" in order to preserve his right to bring action for alleged fraudulent representations and deceptive trade practices in connection with the sale of the automobile. Holley v. Coggin Pontiac, Inc., N.C.App.1979, 259 S.E.2d 1, 43 N.C.App. 229, review denied 261 S.E.2d 919, 298 N.C. 806. Accord And Satisfaction 11(2)

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Mandatory or permissive statute

Grain buyer did not waive its right to assert breach of contract by accepting deliveries without reserving its rights, but statute providing for such reservation of rights was permissive rather than mandatory. Jon-T Farms, Inc. v. Goodpasture, Inc., Tex.Civ.App.-Amarillo 1977, 554 S.W.2d 743, ref. n.r.e.. Sales 179(1)

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"Explicit" reservation of rights

Term "explicit" as used in statute specifying that party, who with "explicit" reservation of rights, performs or promises performance or assents to performance demanded or offered by other party does not thereby prejudice the rights reserved, means that which is so clearly stated or distinctly set forth that there is no doubt as to its meaning. Bivins v. White Dairy, Ala.Civ.App.1979, 378 So.2d 1122, certiorari denied 378 So.2d 1125. Accord And Satisfaction 11(3)

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Assent to performance

Creditor pursuant to accord and satisfaction cannot generally avoid consequences of his exercise of dominion by declaration that he does not consent to condition attached by debtor. E.S. Herrick Co. v. Maine Wild Blueberry Co., Me.1996, 670 A.2d 944. Accord And Satisfaction 11(2)

Provision of the Uniform Commercial Code stating that "A party who with explicit reservation of rights performs or promises performance or assents to performance in any manner demanded or offered by the other party does not thereby prejudice the rights reserved" was inapplicable to the facts of the instant case, in which plaintiff endorsed and cashed defendant's check after crossing out the notation "Payment in full" and adding the notation "Deposited under protest and with full reservation of all my rights," since plaintiff did not, within the meaning of the aforesaid Code provision, assent to performance "in the manner offered." Jahn v. Burns, Wyo.1979, 593 P.2d 828. Accord And Satisfaction 11(3)

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Accord and satisfaction in general

See, also, various note numbers under this section.

If creditor cashes check that has been clearly designated as payment in full, creditor is deemed to have assented to terms of the accord and is bound by the acceptance if the other two essential elements for accord and satisfaction exist. Acierno v. Worthy Bros. Pipeline Corp., Del.Supr.1997, 693 A.2d 1066. Accord And Satisfaction 11(2)

When check is negotiated that was offered as payment of debt in full, court, in determining whether valid accord and satisfaction has occurred, should consider only creditor's objective manifestation of assent, not his or her subjective intent. Acierno v. Worthy Bros. Pipeline Corp., Del.Supr.1997, 693 A.2d 1066. Accord And Satisfaction 11(2)

Even if creditor affirmatively rejects debtor's offer of accord and satisfaction, doctrine will be applied if creditor proceeds to cash check bearing statement that it is "payment in full" or otherwise showing intent to establish accord and satisfaction. Pierola v. Moschonas, D.C.1997, 687 A.2d 942. Accord And Satisfaction 11(2)

Delaware common-law doctrine of accord and satisfaction, which does not allow words of protest added by payee to check to change legal effect of full-payment tender, was not displaced by adoption of Uniform Commercial Code (UCC) provision on performance or acceptance under reservation of rights, which provides that party who with explicit reservation of rights performs in manner demanded by other party does not prejudice rights reserved. Acierno v. Worthy Bros. Pipeline Corp., Del.Supr.1995, 656 A.2d 1085, revised, rehearing denied, on remand 1995 WL 654148. Accord And Satisfaction 11(3)

UCC has not altered common-law rule of accord and satisfaction affecting full payment checks. Chancellor, Inc. v. Hamilton Appliance Co., Inc., N.J.Dist.Ct.1980, 418 A.2d 1326, 175 N.J.Super. 345. Accord And Satisfaction 11(1)

Two essential safeguards built into doctrine of accord and satisfaction protect creditors: first, there must be good-faith dispute about debt; and second, creditor must have reasonable notice that check is intended to be in full satisfaction of debt. Allen v. R.G. Indus. Supply (Ohio , 05-19-1993) 611 N.E.2d 794, 66 Ohio St.3d 229, 1993-Ohio-43. Accord And Satisfaction 10(1); Accord And Satisfaction 11(2)

Mineral lessor's acceptance of royalty checks stating that endorsement acknowledged payment in full of royalties due to date did not constitute accord and satisfaction barring claims for additional compensation in that sums in question were liquidated. Grove v. Winter, Ill.App. 5 Dist.1990, 554 N.E.2d 722, 143 Ill.Dec. 787, 197 Ill.App.3d 406, appeal denied 561 N.E.2d 691, 149 Ill.Dec. 321, 133 Ill.2d 556. Accord And Satisfaction 11(2)

Uniform Commercial Code section governing reservation of rights superseded common-law doctrine of accord and satisfaction in "full payment" or "conditional check" situations. AFC Interiors v. DiCello, Ohio 1989, 544 N.E.2d 869, 46 Ohio St.3d 1. Common Law 11

To prove the existence of an accord and satisfaction, a defendant need not show a plaintiff's express acceptance of the condition, but rather, the law of accord and satisfaction is that where a creditor accepts a conditional tender, the creditor also agrees to the condition; however, the expression of the condition must be clear, full, and explicit. Faith Reformed Church of Traverse City, Michigan v. Thompson, Mich.App.2001, 639 N.W.2d 831, 248 Mich.App. 487. Accord And Satisfaction 11(2)

Neb.Rev.St.U.C.C. § 1-207, relating to performance or acceptance under reservation of rights, does not alter common-law principles of accord and satisfaction. Cass Const. Co., Inc. v. Brennan, Neb.1986, 382 N.W.2d 313, 222 Neb. 69. Accord And Satisfaction 11(3)

Uniform Commercial Code section, providing that party who with explicit reservation of rights assents to performance in manner offered by other party does not prejudice rights reserved, is not applicable to full payment check and does not alter common-law rule of accord and satisfaction as it relates to full payment checks. Flambeau Products Corp. v. Honeywell Information Systems, Inc., Wis.1984, 341 N.W.2d 655, 116 Wis.2d 95. Accord And Satisfaction 11(2)

An accord and satisfaction was not established, when a contractor presented a subcontractor with a check for less than the amount the subcontractor claimed for extra work on a project, and the subcontractor cashed the check without affixing the words "without prejudice" or "under protest;" the contractor was required to, and had not, manifested the intent that the check represented payment in full of the disputed claim. JRDM Corp. v. U.W. Marx Inc., N.Y.A.D. 3 Dept.1998, 675 N.Y.S.2d 691, 252 A.D.2d 854. Accord And Satisfaction 11(2)

An explicit reservation of one's rights by letter satisfies requirement of Uniform Commercial Code and prevents an accord and satisfaction. McKinney's Uniform Commercial Code § 1-207. Masi v. Equitable Variable Life Ins. Co., N.Y.A.D. 2 Dept.1991, 577 N.Y.S.2d 146, 178 A.D.2d 515. Accord And Satisfaction 11(3)

Acceptance of a check operates as an accord and satisfaction only when person receiving check has been clearly informed that acceptance of amount offered will settle or discharge a legitimately disputed unliquidated claim. Complete Messenger & Trucking Corp. v. Merrill Lynch Money Markets, Inc., N.Y.A.D. 1 Dept.1991, 565 N.Y.S.2d 794, 169 A.D.2d 609. Accord And Satisfaction 11(2)

Tender of check in settlement of property damage claim brought transaction within reach of Uniform Commercial Code (UCC) section that permits reservation of rights whenever negotiable instrument is used to make payment on existing debt, regardless of nature of underlying transaction between parties, in determining whether acceptance of full payment check with "No" written on back constituted accord and satisfaction barring further claims. DeVerna v. Kinney Systems, Inc., N.Y.Sup.App.Term 1990, 556 N.Y.S.2d 190, 146 Misc.2d 276. Accord And Satisfaction 11(3)

Section of the Uniform Commercial Code changing common-law rule of accord and satisfaction by allowing good-faith creditor to deposit a "full payment" check provided he indicates his intent to preserve all rights is applicable to a case arising out of a tort. Deverna v. Kinney Systems, Inc., N.Y.City Civ.Ct.1989, 536 N.Y.S.2d 944, 142 Misc.2d 271, affirmed 556 N.Y.S.2d 190, 146 Misc.2d 276. Accord And Satisfaction 11(3)

In order for acceptance of a check to create an accord and satisfaction, the notation on the check or an accompanying writing must express in plain, definite, and certain terms that the debtor is giving such check in full satisfaction of the debt and that acceptance thereof discharges the debt. Strother v. Strother, Idaho App.2002, 41 P.3d 750, 136 Idaho 864. Accord And Satisfaction 11(2)

An "accord and satisfaction" occurs when one party delivers a check to the other with a notation clearly communicating that the check is intended as full satisfaction of a disputed claim and the check is negotiated by the receiving party. Seger v. Drews, Or.App.1989, 784 P.2d 133, 100 Or.App. 56. Accord And Satisfaction 11(2)

Common-law doctrine of accord and satisfaction as applied to "full payment" or "conditioned" checks is not altered by Uniform Commercial Code provision involving performance under reservation of right; declining to follow Horn Waterproofing Corp. v. Bushwick Iron & Steel Co., Inc., 66 N.Y.2d 321, 497 N.Y.S.2d 310, 488 N.E.2d 56; Scholl v. Tallman, 247 N.W.2d 490 (S.D.). Anderson v. Rosebrook, Colo.1987, 737 P.2d 417. Accord And Satisfaction 11(2)

Common-law rules of accord and satisfaction are not altered by U.C.A.1953, 70A-1-207. Marton Remodeling v. Jensen, Utah 1985, 706 P.2d 607. Accord And Satisfaction 1

Section of Uniform Commercial Code governing performance or acceptance under reservation of rights does not alter common-law rules regarding accord and satisfaction by tender of full payment check; such section is limited to continuing disputes on executory contracts. Air Van Lines, Inc. v. Buster, Alaska 1983, 673 P.2d 774. Accord And Satisfaction 11(2)

Statute permitting reservation of rights so as not to be prejudiced by performance in manner demanded or offered by other party does not alter principles of accord and satisfaction. Les Schwab Tire Centers of Oregon, Inc. v. Ivory Ranch, Inc., Or.App.1983, 664 P.2d 419, 63 Or.App. 364. Accord And Satisfaction 11(3)

The common-law requisites for an accord and satisfaction have not been abrogated by the Uniform Commercial Code in transactions governed by the Code. John Grier Const. Co. v. Jones Welding & Repair, Inc., Va.1989, 383 S.E.2d 719, 238 Va. 270. Accord And Satisfaction 1

In determining whether an accord and satisfaction has occurred, the question is whether there was an unmistakable communication to the creditor that tender of the lesser sum is upon the condition that acceptance will constitute satisfaction of the underlying obligation; the condition must be so clear, full, and explicit as to not be susceptible to any other interpretation. Avary v. Bank of America, N.A., Tex.App.-Dallas 2002, 72 S.W.3d 779, rehearing overruled, review denied. Accord And Satisfaction 11(2)

Valid accord and satisfaction requires that there must be unmistakable communication to creditor that acceptance of lesser sum will satisfy underlying obligation, and such condition must be plain, definite, certain, clear, full, explicit, not susceptible of any other interpretation, and accompanied by acts and declarations that creditor is sure to understand. Ostrow v. United Business Machines, Inc., Tex.App.-Hous. (1 Dist.) 1998, 982 S.W.2d 101. Accord And Satisfaction 11(2)

"Accord and satisfaction" necessary to create binding contract between parties can occur when parties make agreement to discharge disputed obligation by lesser payment tendered and accepted, but there must also be meeting of minds and unmistakable communication to creditor that tender of lesser amount is on condition that its acceptance will constitute satisfaction of entire obligation. Universe Life Ins. Co. v. Giles, Tex.App.-Texarkana 1994, 881 S.W.2d 44, rehearing denied, writ granted, affirmed in part, reversed in part 950 S.W.2d 48. Accord And Satisfaction 11(2)

Section of the Uniform Commercial Code providing that party who performs with explicit reservation of rights does not thereby prejudice the rights reserved does not abrogate doctrine of accord and satisfaction with respect to situation where payment is tendered on express condition that acceptance thereof shall be deemed to be a satisfaction in full. McKee Const. Co. v. Stanley Plumbing & Heating Co., Mo.App. S.D.1992, 828 S.W.2d 700, rehearing denied. Accord And Satisfaction 11(2)

Statute stating that 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 has not altered common law rule of accord and satisfaction. Pillow v. Thermogas Co. of Walnut Ridge, Ark.App.1982, 644 S.W.2d 292, 6 Ark.App. 402. Accord And Satisfaction 1

An "accord and satisfaction" is present when a debtor tenders a check with a written notation indicating it is in full settlement of all claims and the claimant accepts the tender. Griffin v. Louisiana Sheriff's Auto Risk Ass'n, La.App. 1 Cir.2001, 802 So.2d 691, 1999-2944 (La.App. 1 Cir. 6/22/01), writ denied 801 So.2d 376, 2001-2117 (La. 11/9/01). Accord And Satisfaction 11(2)

"Accord and satisfaction" is affirmative defense which is proven when there is disputed claim, tender by debtor for less than sum claimed, and acceptance of tender upon negotiation of check; thus, debtor must offer payment to creditor in full satisfaction of disputed claim, and creditor must in turn accept this offer. Creative Marketing Sales, Inc. v. Rayborn, La.App. 5 Cir.1993, 615 So.2d 1107. Accord And Satisfaction 11(2)

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Accord and satisfaction found in particular cases

Any attempt by creditor's agent to strike out notation on debtor's check, that check was tendered in full satisfaction of debtor's entire obligation, was not sufficient to preclude accord and satisfaction under Illinois law when creditor cashed debtor's check, to the extent that check had been tendered in good-faith attempt to satisfy disputed debt. McMahon Food Corp. v. Burger Dairy Co., C.A.7 (Ill.) 1996, 103 F.3d 1307, rehearing denied. Accord And Satisfaction 11(3)

Under Texas law, independent distributor was bound by accord and satisfaction, even if there was bona fide dispute with manufacturer as to liability for amount allegedly due, and even if distributor accepted less than he believed he was due; after negotiations, agreement was reached and distributor began to perform under new terms, which provided for retroactive payments for services already performed. W.G. Pettigrew Distributing Co. v. Borden, Inc., S.D.Tex.1996, 976 F.Supp. 1043, affirmed 127 F.3d 34. Accord And Satisfaction 11(2)

Under Mississippi law, actions of insureds, whose home had been damaged in fire, in cashing check which had been tendered by insurer for damage to home, which stated that it was for fire damage and which had been accompanied by letter stating that check was tendered in full satisfaction of claim, constituted accord and satisfaction of claim against insurer, even though insureds had attempted to reserve rights through notations on check; insureds knew when they cashed check that they could be compromising their case, and statute expressly provides that accord and satisfaction is exception to rule that party may reserve its rights on instrument. Havard v. Kemper Nat. Ins. Companies, S.D.Miss.1995, 945 F.Supp. 953, affirmed 71 F.3d 876. Accord And Satisfaction 11(3)

In context of dispute between buyer and seller regarding price to be paid for seller's blueberries, accord and satisfaction was created by seller's cashing of check that was accompanied by letter stating that check represented final settlement; seller's president admitted that he read letter and that he cashed check, and seller did not indicate to buyer before cashing check that it was not accepting check in final settlement. E.S. Herrick Co. v. Maine Wild Blueberry Co., Me.1996, 670 A.2d 944. Accord And Satisfaction 11(2)

Accord and satisfaction occurred in dispute between "retired" community college administrator and college's board of trustees over amount of compensation for accrued sick-leave days when administrator cashed check tendered by board in full payment of claim, even though administrator allegedly informed college payroll accountant that he considered check to be only partial payment of claim and check was not notated "payment in full"; fact that administrator did not wish to consider check as payment in full did not mean that he did not understand it was offered to him as such. Nieburg v. Board of Trustees of Community College Dist. No. 522, Ill.App. 5 Dist.1991, 576 N.E.2d 1134, 160 Ill.Dec. 180, 217 Ill.App.3d 169. Accord And Satisfaction 11(3)

Law firm's endorsement and deposit of conditional check from client would be deemed valid "satisfaction" of disputed amount of client's bill, for purposes of working accord and satisfaction, even though none of law firm partners actually observed check and conditional language thereon; check was endorsed and deposited by long-time employee of law firm who acted as bookkeeper and was empowered to deposit checks to firm's account and to handle billings, and firm's practice of authorizing employee to endorse firm checks could not be used as shield from legal consequences. Shea, Rogal and Associates, Ltd. v. Leslie Volkswagen, Inc., Ill.App. 1 Dist.1991, 576 N.E.2d 209, 159 Ill.Dec. 540, 216 Ill.App.3d 66, appeal denied 580 N.E.2d 135, 162 Ill.Dec. 509, 141 Ill.2d 560. Accord And Satisfaction 11(2)

By cashing the $5,000 check which employer offered his former employee as full and final payment of his severance relocation associated benefits and which employer treated as an accord, employee demonstrated his intent to accept employer's offer of accord and satisfaction, despite employee's expressed reservations about amount of the settlement. Zanone v. RJR Nabisco, Inc., N.C.App.1995, 463 S.E.2d 584, 120 N.C.App. 768, review denied 467 S.E.2d 738, 342 N.C. 666. Accord And Satisfaction 11(2)

Former employee received $5,000 check sent by employer clearly understanding that employer was offering the check as "full and final" payment of employee's severance relocation associated benefits since employer's letter stated that check was "full and final" payment and therefore, acceptance of employer's offer of accord and satisfaction was established, as a matter of law, when employee cashed the check. Zanone v. RJR Nabisco, Inc., N.C.App.1995, 463 S.E.2d 584, 120 N.C.App. 768, review denied 467 S.E.2d 738, 342 N.C. 666. Accord And Satisfaction 11(2)

Finality language on both face of mortgagors' check to mortgagee, in payment of deficiency as identified by mortgagee's attorneys after foreclosure sale, and in endorsement section on check's opposite side was clear and unequivocal evidence of an accord; when mortgagee's attorneys endorsed check as final payment and forwarded it to mortgagee, which endorsed and deposited it, acceptance of offer was complete and accord and satisfaction was established as matter of law. Boland v. Mundaca Inv. Corp., Tex.App.-Austin 1998, 978 S.W.2d 146. Accord And Satisfaction 11(2)

Insured's cashing of check from homeowners' insurer for property loss after signing letter of acknowledgement that she was choosing cash settlement instead of rebuilding completed accord and satisfaction. McMillin v. American Family Ins. Co., Mo.App. W.D.1997, 950 S.W.2d 242, rehearing and/or transfer denied. Accord And Satisfaction 11(2)

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Accord and satisfaction not found in particular cases

Where a judgment is appealed on the ground that the damages awarded are inadequate, acceptance of payment of the amount of the judgment, standing alone, does not amount to an accord and satisfaction of the entire claim. Collins v. Montgomery County Bd. of Prison Inspectors, C.A.3 (Pa.) 1999, 176 F.3d 679, 165 A.L.R. Fed. 727, certiorari denied 120 S.Ct. 932, 528 U.S. 1115, 145 L.Ed.2d 811. Accord And Satisfaction 11(2)

Under Florida law, accord and satisfaction between Medigap insurer and hospital did not occur when check for hospitalization claim was sent directly to patient accompanied by cover letter stating that it represented full payment of claim, patient gave check to hospital without cover letter, and hospital endorsed check and deposited it; thus, hospital's claim against insurer as third-party beneficiary of policy for additional amounts due for its services was not barred. Vencor Hospitals v. Blue Cross Blue Shield of Rhode Island, C.A.11 (Fla.) 1999, 169 F.3d 677, on remand 86 F.Supp.2d 1155. Accord And Satisfaction 11(2)

Plaintiff's acceptance of defendants' check for services rendered did not constitute "accord and satisfaction," as plaintiff reserved its right under Uniform Commercial Code (UCC) to pursue remainder of its claim when it wrote on back of check that, "[T]he check is deposited under protest, without prejudice and with reservation of all rights of the payee against drawer of this check." Metropolitan Knitwear v. Trans World Fashions, Inc., N.Y.A.D. 1 Dept.1996, 649 N.Y.S.2d 702, 233 A.D.2d 241. Accord And Satisfaction 11(3)

Landlord's acceptance of check did not constitute an accord and satisfaction relieving tenant of any further obligation under lease; notation on check that it was "for office heating bills through 1989 as per agreement" by its terms did not cover all outstanding amounts claimed to be owed. Executive Park West I v. Jung, N.Y.A.D. 4 Dept.1996, 637 N.Y.S.2d 832, 224 A.D.2d 990, leave to appeal denied 645 N.Y.S.2d 446, 88 N.Y.2d 803, 668 N.E.2d 417. Accord And Satisfaction 11(2)

Bank failed to establish accord and satisfaction of wife's claim against bank for funds owed pursuant to certificates of deposit (CD) that had been held jointly by husband and wife until husband's death; wife accepted check from bank, but there was no evidence of any equivocal language by bank that would put wife on notice that her claims were being released by cashing check, and there was no showing that bank tendered check in complete settlement of wife's claim. Wallace v. United Mississippi Bank, Miss.1998, 726 So.2d 578, rehearing denied. Accord And Satisfaction 11(2)

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Bona fide dispute

Although not abrogated by adoption of Uniform Commercial Code, the accord and satisfaction principles announced in Potter apply only where there is a bona fide dispute, and it matters not whether there is no solid foundation for the dispute as test is whether the dispute was honest or fraudulent. Connecticut Printers, Inc. v. Gus Kroesen, Inc., Cal.App. 1 Dist.1982, 184 Cal.Rptr. 436, 134 Cal.App.3d 54. Accord And Satisfaction 10(1)

Check which bore legend indicating that it was in full accord and satisfaction for any real estate commission claimed by real estate broker against vendor did not operate as accord and satisfaction under the Uniform Commercial Code where vendor never disputed amount owed before check was sent to broker. Century 21 Kaaterskill Realty v. Grasso, N.Y.A.D. 3 Dept.1986, 508 N.Y.S.2d 99, 124 A.D.2d 316. Accord And Satisfaction 11(2)

Subcontractor implicitly agreed to accord and satisfaction when it negotiated general contractor's full payment check during dispute between parties as to how much general contractor owed subcontractor under subcontract; subcontractor had option to destroy check and sue for damages to which it believed it was entitled or to negotiate check and consider subcontract dispute settled. Danac, Inc. v. Gudenau & Co., Inc., Alaska 1988, 751 P.2d 947. Accord And Satisfaction 9

Creditor's acceptance of checks with notice of conditions does not as matter of law constitute accord and satisfaction when there is no bona fide controversy or independent agreement. Treadwell v. Treadwell, Ga.App.1995, 463 S.E.2d 497, 218 Ga.App. 823, reconsideration denied, certiorari denied. Accord And Satisfaction 11(2)

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Breach of fiduciary duty

Escrow agent's breach of its fiduciary duty to depositor, through payment of attorney fees out of escrow account without depositor's permission, superseded its accord and satisfaction defense, that endorsement of check it tendered by depositors' attorney constituted full satisfaction of disputed amount owed notwithstanding attorney's deletion of condition to that effect and substitution of other language. Trevino v. Brookhill Capital Resources, Inc., Tex.App.-Hous. (1 Dist.) 1989, 782 S.W.2d 279, writ denied, rehearing of writ of error overruled. Accord And Satisfaction 11(3)

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Checks in general

See, also, various note numbers under this section

Under Florida law, where party cashes check but protests that additional payment is necessary to fully satisfy alleged debt, accord and satisfaction operates to bar that party's claim for further payment. Fabric v. Provident Life & Acc. Ins. Co., C.A.11 (Fla.) 1997, 115 F.3d 908, rehearing and suggestion for rehearing en banc denied 129 F.3d 617, certiorari denied 118 S.Ct. 1563, 523 U.S. 1095, 140 L.Ed.2d 794. Accord And Satisfaction 11(3)

Creditor's negotiation of check marked "final payment" was acceptance of debtor's offer to settle dispute over amount due, creating accord and satisfaction and rendering irrelevant creditor's subsequent letter demanding further payment. Occidental Chemical Corp. v. Environmental Liners, Inc., E.D.Pa.1994, 859 F.Supp. 791. Accord And Satisfaction 11(2)

Regardless of whether $60,000 offer for doctor's share in medical practice was still outstanding or whether letter, payment schedule and checks submitted by doctor's former colleagues constituted renewed offer, doctor's acceptance, endorsement and negotiation of checks, which clearly indicated that they represented full satisfaction of doctor's claim, without protest or reservation operated as accord and satisfaction under New York law. Lande v. Radiology Specialists of Kingston P.C., S.D.N.Y.1992, 806 F.Supp. 1084. Accord And Satisfaction 11(2)

Under Florida law, creditor's cashing of debtor's check which was tendered on express condition that it be accepted in full satisfaction of creditor's claim effected a valid accord and satisfaction, notwithstanding creditor's alteration which consisted of crossing out acknowledgment on back of check with the words "With Reservation Under Protest" written beneath alteration, where claim was disputed, and tender offer was different from amount originally owed under the debt. Burke Co. v. Hilton Development Co., N.D.Fla.1992, 802 F.Supp. 434. Accord And Satisfaction 11(3)

Supplier's endorsement and cashing of check tendered by contractor for amounts allegedly owed supplier constituted accord and satisfaction; unambiguous language contained on tendered checks clearly indicated that instrument represented payment in full for supplier's services. U.S. for Use of Las Vegas Bldg. Materials, Inc. v. Bernadot, D.Nev.1989, 719 F.Supp. 936. Accord And Satisfaction 11(2)

Under New Jersey law, accord and satisfaction may be found where check bearing notation that it is offered in full settlement of disputed claim is delivered to creditor, who then retains check and makes use thereof; tender having been made upon condition that it be accepted in full satisfaction or not at all, creditor is deemed to have accepted condition by depositing check for collection. In re Lifestyle 80's Inc., Bkrtcy.D.N.J.1995, 187 B.R. 156. Accord And Satisfaction 11(2)

There is no requirement of actual subjective meeting of the minds as to whether accord and satisfaction is intended because creditor's assent, in accepting check designated as payment in full, is imputed as matter of law based upon its objective conduct. Acierno v. Worthy Bros. Pipeline Corp., Del.Supr.1997, 693 A.2d 1066. Accord And Satisfaction 11(2)

When check is negotiated that was offered as payment of debt in full, court, in determining whether valid accord and satisfaction has occurred, should consider only creditor's objective manifestation of assent, not his or her subjective intent. Acierno v. Worthy Bros. Pipeline Corp., Del.Supr.1997, 693 A.2d 1066. Accord And Satisfaction 11(2)

If creditor cashes check that has been clearly designated as payment in full, creditor is deemed to have assented to terms of the accord and is bound by the acceptance if the other two essential elements for accord and satisfaction exist. Acierno v. Worthy Bros. Pipeline Corp., Del.Supr.1997, 693 A.2d 1066. Accord And Satisfaction 11(2)

If creditor knowingly cashes or otherwise exercises full dominion over check explicitly tendered in full satisfaction of unliquidated debt, creditor cannot disown any conditions upon which check has been tendered. Herbert S. Newman and Partners, P.C. v. CFC Const. Ltd. Partnership, Conn.1996, 674 A.2d 1313, 236 Conn. 750. Accord And Satisfaction 11(2)

If debtor tenders check to creditor as payment in full for less than amount alleged to be owing on debt, creditor may accept check as partial payment, as long as creditor makes reservation of rights in manner that clearly and explicitly notifies debtor that check is not accepted as full payment on debt and that no accord and satisfaction has occurred. Frangiosa v. Kapoukranidis, Vt.1993, 627 A.2d 351, 160 Vt. 237. Accord And Satisfaction 11(2)

"Reservation of rights" language inserted by payee on an instrument does not operate to bar accord and satisfaction. Stultz Elec. Works v. Marine Hydraulic Engineering Co., Me.1984, 484 A.2d 1008. Accord And Satisfaction 11(3)

Acceptance by creditor of check offered by debtor in full payment of disputed debt is an accord and satisfaction of the debt and no condition of protest or attempted reservation of rights can affect the legal quality of the action. Chancellor, Inc. v. Hamilton Appliance Co., Inc., N.J.Dist.Ct.1980, 418 A.2d 1326, 175 N.J.Super. 345. Accord And Satisfaction 11(3)

Provision of Uniform Commercial Code that one 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 and had not abrogated the Potter principles of accord and satisfaction involving tender of a check or draft which principles have been codified in the Civil Code. Connecticut Printers, Inc. v. Gus Kroesen, Inc., Cal.App. 1 Dist.1982, 184 Cal.Rptr. 436, 134 Cal.App.3d 54. Accord And Satisfaction 11(3)

Where there is an honest dispute as to an amount owed and due between parties and debtor tenders a check with the explicit understanding that it is full payment of all demands, creditor's acceptance and negotiation of check is an "accord and satisfaction." Koules v. Euro-American Arbitrage, Inc., Ill.App. 2 Dist.1998, 689 N.E.2d 411, 228 Ill.Dec. 539, 293 Ill.App.3d 823. Accord And Satisfaction 11(2)

Payee who had cashed check covering payment for business payee had referred to drawer, had entered into an accord and satisfaction that payment represented all amounts due in connection with all referrals; there had been meeting in attempt to resolve disputed debt, no agreement had been reached, drawer had informed payee that drawer's outstanding debt was $812, representing commission from one project, check had contained legend "balance on commissions payment in full," and payee had indicated his awareness that drawer intended check to be payment for all commissions by inserting word "not" to make legend read "balance on commissions payment not in full." Mominee v. King, Ind.App. 1 Dist.1994, 629 N.E.2d 1280. Accord And Satisfaction 11(2)

Accord and satisfaction is accomplished when creditor accepts and deposits check which debtor offers as full payment for unliquidated or disputed debt; by cashing the check, creditor manifests assent to terms of new contract which extinguishes earlier contractual obligation. Allen v. R.G. Indus. Supply (Ohio , 05-19-1993) 611 N.E.2d 794, 66 Ohio St.3d 229, 1993-Ohio-43. Accord And Satisfaction 11(2)

To constitute accord and satisfaction, creditor must either accept payment with condition or refuse it and it makes no difference that creditor protests or states that he does not accept amount proffered in full satisfaction; creditor has no right to cash check and thereby obtain benefit of such offer without its accompanying burden of compromise. A.F.P. Enterprises, Inc. v. Crescent Pork, Inc., Ill.App. 2 Dist.1993, 611 N.E.2d 619, 183 Ill.Dec. 356, 243 Ill.App.3d 905, appeal denied 622 N.E.2d 1199, 190 Ill.Dec. 882, 152 Ill.2d 553. Accord And Satisfaction 11(2); Accord And Satisfaction 11(3)

Acceptance of check given in full satisfaction of disputed claim is accord and satisfaction if creditor took check with notice of condition upon which check was tendered. Schultheis v. McWilliams Elec. Co., Inc., Ill.App. 1 Dist.1991, 579 N.E.2d 1100, 162 Ill.Dec. 286, 219 Ill.App.3d 571. Accord And Satisfaction 11(2)

Debtor cannot unilaterally write check to pay bill, include notation that amount tendered is in full satisfaction of debt, and expect to prevail on accord and satisfaction theory if receiver of check then deposits or cashes it. Shea, Rogal and Associates, Ltd. v. Leslie Volkswagen, Inc., Ill.App. 1 Dist.1991, 576 N.E.2d 209, 159 Ill.Dec. 540, 216 Ill.App.3d 66, appeal denied 580 N.E.2d 135, 162 Ill.Dec. 509, 141 Ill.2d 560. Accord And Satisfaction 11(2)

Words "final payment" written on check did not give payee notice that check was intended as payment in full of maker's obligation, so that wording did not constitute accord and satisfaction and payee's acceptance of check was not admission of payment in full. Prepakt Concrete Co. v. Koski Constr. Co., Ohio App. 8 Dist.1989, 573 N.E.2d 209, 60 Ohio App.3d 28. Accord And Satisfaction 11(2)

Where debtor tenders check to creditor as payment in full for less than amount alleged to be owed on debt, creditor may accept check as partial payment on debts so long as creditor explicitly reserves all rights by endorsing check "under protest" or any legend sufficient to apprise debtor the check is not accepted as full payment on debt, and in so doing, creditor does not thereby prejudice any rights reserved on balance alleged to be due; overruling Seeds, Grain & Hay Co. v. Conger, 88 Ohio St. 169, 93 N.E. 892. AFC Interiors v. DiCello, Ohio 1989, 544 N.E.2d 869, 46 Ohio St.3d 1. Accord And Satisfaction 11(2)

Creditor's cashing of debtor's check resulting in acceptance of accord and satisfaction where debtor's check for $5,000 was marked "payment in full" for disputed bill of $9,000, even though creditor had told debtor in advance that check would not be deemed full payment and even though creditor inserted words "partial payment" on check. Butler v. Kocisko, Wis.App.1991, 479 N.W.2d 208, 166 Wis.2d 212. Accord And Satisfaction 11(3)

Defense of accord and satisfaction was available to claim for unpaid bill for services where creditor negotiated check marked "Pd. in Full" by debtor, though creditor unequivocally expressed in writing a contrary intent by striking out "Pd. in Full," in writing "Rec. on account" and, on back of check, writing "Rec. as partial payment." Channave v. Kraai, N.Y.Just.Ct.1983, 466 N.Y.S.2d 916, 120 Misc.2d 859. Accord And Satisfaction 11(3)

Uniform Commercial Code section governing reservation of rights is not limited in application to accord and satisfaction by way of "conditional check." Continental Information Systems Corp. v. Mutual Life Ins. Co. of New York, N.Y.A.D. 4 Dept.1980, 432 N.Y.S.2d 952, 77 A.D.2d 316. Accord And Satisfaction 11(2)

While the provision of the Uniform Commercial Code to the effect that words such as "without prejudice" or "under protest" are sufficient to amount to an explicit reservation of rights might give guidance to the court in a situation where the application of the section was not clear, the section could not, in an area where it clearly did not apply, be the basis for overturning well- settled rule that the acceptance of a check in full payment of a disputed claim operates as an accord and satisfaction. Blottner, Derrico, Weiss & Hoffman, P.C. v. Fier, N.Y.City Civ.Ct.1979, 420 N.Y.S.2d 999, 101 Misc.2d 371. Accord And Satisfaction 11(2)

Uniform Commercial Code (UCC) provision allowing reservation of rights by party performing or promising performance applies to transactions involving checks in which party to transaction seeks to reserve right to challenge some part of underlying agreement after check has been transferred. Margason v. Roberts, Colo.App.1995, 919 P.2d 818, modified on denial of rehearing, certiorari denied. Accord And Satisfaction 11(3)

Fact that company which hauled crushed rock for defendant endorsed check tendered by defendant in full payment of amount owed under protest had no bearing on proving or disproving whether the check worked an accord and satisfaction, but rather focus of inquiry was point in time when defendant tendered the check to company and company's actions in accepting the check. Perkins v. Highland Enterprises, Inc., Idaho 1991, 817 P.2d 177, 120 Idaho 511. Accord And Satisfaction 11(3)

Creditor's acceptance of debtor's check with reservation of rights constituted an accord and satisfaction, despite assertion that statute permitting reservation of rights so as not to be prejudiced by performance in manner demanded or offered by other party had altered principles of accord and satisfaction. Les Schwab Tire Centers of Oregon, Inc. v. Ivory Ranch, Inc., Or.App.1983, 664 P.2d 419, 63 Or.App. 364. Accord And Satisfaction 11(3)

When check is tendered on express condition that it constitutes full payment, creditor's negotiation of check constitutes accord and satisfaction, even if creditor attempts to reserve its rights before negotiating checks. State, Dept. of Fisheries v. J-Z Sales Corp., Wash.App.1980, 610 P.2d 390, 25 Wash.App. 671. Accord And Satisfaction 11(2)

University medical librarian's acceptance of payment from university pursuant to arbitration award with respect to her termination constituted accord and satisfaction of underlying dispute as matter of law; no material facts were in issue surrounding delivery and acceptance of payment, and undisputed facts showed that only reasonable inferences regarding parties' intent were that university intended its check to librarian to be full and final payment resolving dispute and that librarian understood that this was university's intent. Futrelle v. Duke University, N.C.App.1997, 488 S.E.2d 635, 127 N.C.App. 244, review denied 494 S.E.2d 412, 347 N.C. 398. Accord And Satisfaction 11(2)

Cashing a check known to be offered as an accord and satisfaction establishes, as a matter of law, that payee intended to accept the offer even though he previously voiced reservations about amount of the settlement. Zanone v. RJR Nabisco, Inc., N.C.App.1995, 463 S.E.2d 584, 120 N.C.App. 768, review denied 467 S.E.2d 738, 342 N.C. 666. Accord And Satisfaction 11(2)

Accepting check that bears the words "final payment" or similar phrases does not constitute accord and satisfaction as a matter of law.--Tremont Const. Co., Inc. v. Dunlap, S.C.App.1992, 425 S.E.2d 792, 310 S.C. 180, rehearing denied, certiorari denied. Accord And Satisfaction 11(2)

Cashing of a check tendered in full payment of disputed claim establishes accord and satisfaction as matter of law and in such case claim is extinguished, regardless of any disclaimers which may be communicated by payee. Sharpe v. Nationwide Mut. Fire Ins. Co., N.C.App.1983, 302 S.E.2d 893, 62 N.C.App. 564, certiorari denied 310 S.E.2d 353, 309 N.C. 823. Accord And Satisfaction 11(2); Accord And Satisfaction 11(3)

Business referral company's conditional acceptance of manufacturer's commission payment by endorsing payment with notation "Accepted as Partial Payment," when manufacturer had noted on check that it was "final payment for commission," did not preclude manufacturer from asserting affirmative defense of accord and satisfaction to referral company's breach of contract action. Metromarketing Services, Inc. v. HTT Headwear, Ltd., Tex.App.-Hous. (14 Dist.)2000, 15 S.W.3d 190. Accord And Satisfaction 11(3)

When check listing certain conditions is tendered to party and those conditions are accepted, contract is formed when check is cashed or deposited. Ostrow v. United Business Machines, Inc., Tex.App.-Hous. (1 Dist.) 1998, 982 S.W.2d 101. Accord And Satisfaction 11(2)

If claim is unliquidated or in dispute, if check has been tendered on the express condition that acceptance thereof shall be deemed to be satisfaction in full, and if payee cashes the check, accord and satisfaction results even though conditional language on check has been struck out or modified. Clark v. Traders Ins. Co., Mo.App. W.D.1997, 951 S.W.2d 750.

Painters' acceptance of homeowners' check for less than full amount due on contract to paint house operated as an accord and satisfaction of claim against homeowners; uncontradicted evidence plainly showed that homeowners disputed amount they owed painters when painters accepted check, and homeowners gave painters check on which was written "PD. in full for painting." and painters cashed check, although they scratched out notation. Hardison v. Jackson, Ark.App.1994, 871 S.W.2d 410, 45 Ark.App. 49. Accord And Satisfaction 12(1)

Payment of debt owed contractor for excavating services was not accord and satisfaction as to contractor's claim for damages allegedly caused by negligent operation of contractor's bulldozer by one of contractor's employers, even though cashier's check issued to contractor stated it was full satisfaction for all money owed to contractor, where cashier's check was lost and second cashier's check contained no restrictive endorsement, where there was no dispute concerning amount owed by employers on claim for excavating services, and where there was no intention of parties to affect accord and satisfaction of claim for damages caused by operation of bulldozer. Helton Const. Co., Inc. v. Thrift, Mo.App. S.D.1993, 865 S.W.2d 419. Accord And Satisfaction 11(2)

Contractor's cashing of check which had been tendered as payment in full and full and final release of any claims resulted in new contract of accord and satisfaction, despite adding of restrictive endorsement, "Under protest and with full reservation of rights to collect the balance owed." McKee Const. Co. v. Stanley Plumbing & Heating Co., Mo.App. S.D.1992, 828 S.W.2d 700, rehearing denied. Accord And Satisfaction 12(2)

The UCC section pertaining to performance or acceptance under reservation of rights permits a creditor who receives "payment in full" check on disputed claim to accept the check without losing his rights to sue for balance of payment so long as he explicitly reserves those rights. Ditch Witch Trenching Co. of Kentucky, Inc. v. C & S Carpentry Services, Inc., Ky.App.1991, 812 S.W.2d 171. Accord And Satisfaction 11(3)

Provision of uniform commercial code providing that party who with explicit reservation of rights assents to performance does not prejudice rights reserved applied to tender of full-payment check. Robinson v. Garcia, Tex.App.- Corpus Christi 1991, 804 S.W.2d 238, writ denied 817 S.W.2d 59, rehearing of writ of error overruled. Accord And Satisfaction 11(3)

When maker tenders check to payee as full payment of obligation, the amount of which is disputed by parties, effect is offer of compromise by maker, conferring upon payee a specific right to consent to full satisfaction of debt by accepting check, or to retain rights under prior agreement by rejecting check; without maker's express or tacit consent, payee cannot negotiate check and then renounce condition upon which maker made offer. Anesthesia East, Inc. v. Bares, La.App. 4 Cir.1992, 594 So.2d 1085. Accord And Satisfaction 11(3)

Provision of the Uniform Commercial Code governing reservations of rights may not be employed to defeat a compromise and settlement or accord and satisfaction where requisite elements from either of those devices are present or where a check is tendered in final payment for goods or services and is appropriately endorsed by drawer in clear and unequivocal language which check is then accepted and cashed by payee. Eder v. Yvette B. Gervey Interiors, Inc., Fla.App. 4 Dist.1981, 407 So.2d 312. Accord And Satisfaction 11(3); Compromise And Settlement 5(1)

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Letter reserving rights, timeliness of

Letter purporting to reserve rights under Uniform Commercial Code section pertaining to acceptance under reservation of rights is untimely and ineffective if it does not precede or accompany unrestricted acceptance of settlement check. Sarbin v. Southwest Media Corp., N.Y.A.D. 1 Dept.1992, 578 N.Y.S.2d 571, 179 A.D.2d 567. Accord And Satisfaction 11(2)

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Oral reservation of rights

Creditor's deposit of debtor's cashier's check for amount less than full judgment debt, done with knowledge that check had been tendered in full satisfaction of claims, was acceptance of settlement which constituted accord and satisfaction of entire judgment debt, notwithstanding creditor's verbal assertion that it was not accepting check as full payment. Air Power, Inc. v. Omega Equipment Corp., Md.App.1983, 459 A.2d 1120, 54 Md.App. 534. Accord And Satisfaction 11(3)

Cashing of a check tendered in full payment of a disputed claim establishes an accord and satisfaction as a matter of law and the claim is extinguished, regardless of any disclaimers which may be communicated by payee. Zanone v. RJR Nabisco, Inc., N.C.App.1995, 463 S.E.2d 584, 120 N.C.App. 768, review denied 467 S.E.2d 738, 342 N.C. 666. Accord And Satisfaction 11(2); Accord And Satisfaction 11(3)

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Erasure or obliteration of words offering accord

Principles of accord and satisfaction apply even though creditor has erased or obliterated words creating offer of accord. U.S. for Use of Las Vegas Bldg. Materials, Inc. v. Bernadot, D.Nev.1989, 719 F.Supp. 936. Accord And Satisfaction 11(3)

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Consideration

For purposes of doctrine of accord and satisfaction, debtor's tender of $5,000 check marked "payment in full" in satisfaction of creditor's disputed $9,000 claim was consideration sufficient to support application of doctrine; payment of undisputed portion of disputed claim by check marked "paid in full" could be consideration for disputed portion of claim. Butler v. Kocisko, Wis.App.1991, 479 N.W.2d 208, 166 Wis.2d 212. Accord And Satisfaction 11(2)

When a debtor pays a creditor an amount less than the entire liquidated claim before the debt is due or the obligation to pay it has matured, and the creditor accepts the early payment in full satisfaction of the entire claim, such payment is a sufficient consideration to support an accord and satisfaction of the claim. Thielen v. Thielen, Hawai'i App.1998, 964 P.2d 645, 88 Hawai'i 191. Accord And Satisfaction 11(2)

The payment of any sum whatever prior to maturity of the debt is a sufficient consideration for a promise, and it operates as satisfaction of the entire debt if the creditor accepts it as such; even if the amount paid is relatively small and is much less than the present value of the debt, discounting it at market rates of interest, it operates as satisfaction in full if the creditor accepts it as such. Thielen v. Thielen, Hawai'i App.1998, 964 P.2d 645, 88 Hawai'i 191. Accord And Satisfaction 11(2)

Contract of accord and satisfaction, arising from notation on check that endorsement of check constituted complete settlement of corporation's claim for payment of moving services provided to partnership and corporation's endorsement of check without any reservation of rights, was not dependent on separate consideration for its validity. Air Van Lines, Inc. v. Buster, Alaska 1983, 673 P.2d 774. Accord And Satisfaction 11(2)

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Amounts covered by check

Landlord's acceptance of check did not constitute an accord and satisfaction relieving tenant of any further obligation under lease; notation on check that it was "for office heating bills through 1989 as per agreement" by its terms did not cover all outstanding amounts claimed to be owed. Executive Park West I v. Jung, N.Y.A.D. 4 Dept.1996, 637 N.Y.S.2d 832, 224 A.D.2d 990, leave to appeal denied 645 N.Y.S.2d 446, 88 N.Y.2d 803, 668 N.E.2d 417. Accord And Satisfaction 11(2)

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Certified checks

Where check was tendered as payment in full for disputed amount and payee caused check to be certified, accord and satisfaction resulted, because certification was equivalent to acceptance by payee and subsequent deposit of check by payee with endorsement "without prejudice and under protest" did not render applicable statute to effect that party who with explicit reservation of rights performs or promises performance or assents to performance in manner demanded or offered by other party does not thereby prejudice the rights reserved and such words as "without prejudice," "under protest" or the like are sufficient. Lange-Finn Const. Co., Inc. v. Albany Steel & Iron Supply Co., Inc., N.Y.Sup.1978, 403 N.Y.S.2d 1012, 94 Misc.2d 15. Accord And Satisfaction 11(3)

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Non-Code situations

Printed message on face of insurance check which stated that it was compensation for "any and all claims for bodily injury" was insufficient to notify automobile accident victim that check was intended to be in accord and satisfaction of claims against tort-feasors; for notice to have been sufficient, it would have had to contain reference to date of alleged tort, explicit statement that it was final payment by tort-feasor, and reference to terms on front of check printed above endorsement line on back of check. Allen v. R.G. Indus. Supply (Ohio , 05-19-1993) 611 N.E.2d 794, 66 Ohio St.3d 229, 1993-Ohio-43. Accord And Satisfaction 11(2)

Construction contract, in which barely any mention was made of "goods" to be "sold," while there was exhaustive attention paid to work to be performed, was not covered by the Uniform Commercial Code, in particular, section governing performance or acceptance under reservation of rights, and thus subcontractor's acceptance of payment offered by general contractor defeated subcontractor's breach of contract claim, despite attempted reservation of rights by subcontractor. Geelan Mechanical Corp. v. Dember Const. Corp., N.Y.A.D. 2 Dept.1983, 468 N.Y.S.2d 680, 97 A.D.2d 810. Sales 3.1

Doctrine of accord and satisfaction as now expressed in Uniform Commercial Code should be applied to comparable non-Code covered situations, and therefore receipt and acceptance of check tendered by owner and operator of allegedly negligently operated automobile did not constitute accord and satisfaction where payee in receiving, depositing and collecting check made clear that he was accepting payment as partial payment "without prejudice" to his claim for additional sum. Cohen v. Ricci, N.Y.City Ct.1983, 466 N.Y.S.2d 121, 120 Misc.2d 712. Accord And Satisfaction 11(3)

Where, though transaction underlying billing dispute occurred in an area to which the Uniform Commercial Code might not expressly apply, it was appropriate that the rule of the statute be applied, defendant's reservation of its rights via a letter that it was accepting a certain check only in partial satisfaction prevented an accord and satisfaction regarding billing for party given by plaintiff at defendant's premises. Ayer v. Sky Club, Inc., N.Y.A.D. 1 Dept.1979, 418 N.Y.S.2d 57, 70 A.D.2d 863, appeal dismissed 422 N.Y.S.2d 68, 48 N.Y.2d 705, 397 N.E.2d 758. Accord And Satisfaction 9

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Notice

Insurer's acceptance and cashing of insured's check which had words "payment in full settlement" on its stub and on back was not accord and satisfaction under Arkansas law that discharged insured's obligation to pay workers' compensation premiums; bank employees endorsed and deposited checks into insured's account, and insured received only photocopy of face of check and was unaware of notations on check's stub and back. Employers Ins. of Wausau v. Polar Exp., Inc., W.D.Ark.1991, 780 F.Supp. 610. Accord And Satisfaction 11(2)

Party alleging accord and satisfaction may prove requisite notice to creditor that tendered amount was offered as payment in full of creditor's claim either by extrinsic evidence of agreement or by sufficient notation on the check. Allen v. R.G. Indus. Supply (Ohio , 05-19-1993) 611 N.E.2d 794, 66 Ohio St.3d 229, 1993-Ohio-43. Accord And Satisfaction 11(2); Evidence 450(1)

Section of Uniform Commercial Code governing performance or acceptance under reservation of rights requires creditor seeking to reserve rights in face of full payment check to communicate that intent to debtor before cashing check to enable debtor to consider creditor's position and either agree or stop payment on check. Air Van Lines, Inc. v. Buster, Alaska 1983, 673 P.2d 774. Accord And Satisfaction 11(2)

Payment by contractor to subcontractor of portion of disputed amount by check with the words "These monies reflect payment in full on the Carillon project" on the back of the check did not operate as an accord and satisfaction, where the bookkeeper of the subcontractor deposited the check in the subcontractor's bank account without endorsement and the subcontractor was unaware of the words on the back of the check. John Grier Const. Co. v. Jones Welding & Repair, Inc., Va.1989, 383 S.E.2d 719, 238 Va. 270. Accord And Satisfaction 11(2)

Where payee received check for amount less than account stated on his bill, where check had words "landscaping paid in full" printed on bottom left corner, and where on top of reverse side were handwritten the words "cashing of this check constitutes release and waiver of any lien," payee was not required to notify makers of check, prior to negotiation, that his acceptance was under protest or reservation of rights, in view of statute governing acceptance under reservation of rights. Miller v. Jung, Fla.App. 2 Dist.1978, 361 So.2d 788. Accord And Satisfaction 11(3)

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Purchase orders

Where meat packer informed meat purchaser that it was increasing purchase price of pork products by seven cents per pound, purchaser's only remedy was to reserve whatever right it may have had to old price by sending its purchase orders with "explicit reservation," or to find supplier who would sell at an acceptable price. Mid-South Packers, Inc. v. Shoney's, Inc., C.A.5 (Miss.) 1985, 761 F.2d 1117. Sales 75

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Service contracts

Uniform Commercial Code (UCC) applied to payments by check made for personal services; conditional statement on check, followed by endorsement reserving rights would not be recognized as accord and satisfaction but would be governed by UCC. Frangiosa v. Kapoukranidis, Vt.1993, 627 A.2d 351, 160 Vt. 237. Accord And Satisfaction 11(2); Payment 33

In cases where the Uniform Commercial Code is applicable, creditor by complying with Code provision can reserve his rights although he accepts a check being conditioned as payment in full, but the rule is otherwise where the underlying transaction involves services or where service predominates. Channave v. Kraai, N.Y.Just.Ct.1983, 466 N.Y.S.2d 916, 120 Misc.2d 859. Accord And Satisfaction 11(2)

Act of plaintiff in accepting a check from defendant for right to publish photographs taken by plaintiff and in negotiating check after placing words on back that check was being "Cashed under protest * * * does not represent full amount claimed" operated as a "reservation of rights" under the Uniform Commercial Code so as to permit plaintiff to pursue his claim against defendant in connection with payment for world distribution rights; plaintiff's sale to defendant of the rights to the reproduction of his photograph was more analogous to a "transaction in goods" as to which the Code applied than to a "rendition of services" as to which the Code did not apply. Aguiar v. Harper & Row Publishers, Inc., N.Y.City Civ.Ct.1982, 452 N.Y.S.2d 519, 114 Misc.2d 828. Accord And Satisfaction 11(3)

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Reservation of rights sufficient

Where seller made delivery of aggregate under express protest and with explicit reservation of rights, it did not waive breach by buyer or prejudice any rights reserved by seller, including right to sue buyer for damages for breach. Shea-Kaiser-Lockheed-Healy v. Department of Water and Power of City of Los Angeles, Cal.App. 2 Dist.1977, 140 Cal.Rptr. 884, 73 Cal.App.3d 679. Sales 196

Creditor's crossing out debtor's payment in full notation on check and substituting its own "payment on account" notation constituted reservation of creditor's rights against debtor as to balance alleged by creditor to be due. AFC Interiors v. DiCello, Ohio 1989, 544 N.E.2d 869, 46 Ohio St.3d 1. Accord And Satisfaction 11(2)

Under Uniform Commercial Code (UCC), creditor's reservation of rights in voluntary repossession agreement precluded common-law accord and satisfaction at time that creditor accepted surrender of debtor's automobile subject to retail installment contract. General Motors Acceptance Corp. v. Desbiens, N.Y.A.D. 3 Dept.1995, 623 N.Y.S.2d 939, 213 A.D.2d 886. Accord And Satisfaction 11(3)

Letter from plaintiff's attorney acknowledging receipt of letter from insurer rescinding policy and premium refund check, and informing insurer that plaintiff reserved right to commence action against it despite fact that she would negotiate check effectively reserved plaintiff's rights and prevented an accord and satisfaction, notwithstanding that plaintiff did not indicate that she was reserving her rights on refund check itself. Masi v. Equitable Variable Life Ins. Co., N.Y.A.D. 2 Dept.1991, 577 N.Y.S.2d 146, 178 A.D.2d 515. Accord And Satisfaction 11(3)

Tort claimant's acceptance of a full-payment check for $200, offered as settlement of tort action arising when defendant parking garage allowed spray paint to drift onto claimant's car, did not constitute accord and satisfaction, barring further claims, where claimant rejected the condition stamped on the back of the check by writing "No" and initialing it, and where claimant was acting in good faith in seeking to recover costs of repair, estimated to exceed $2,000. Deverna v. Kinney Systems, Inc., N.Y.City Civ.Ct.1989, 536 N.Y.S.2d 944, 142 Misc.2d 271, affirmed 556 N.Y.S.2d 190, 146 Misc.2d 276. Accord And Satisfaction 11(3)

By endorsing rent check signed by named tenant's brother with restriction "under protest wrong tenant," landlords' agent preserved right to challenge brother's status. Festa v. Leshin, N.Y.City Civ.Ct.1986, 505 N.Y.S.2d 538, 132 Misc.2d 804, affirmed as modified 528 N.Y.S.2d 261, 138 Misc.2d 399, reversed 537 N.Y.S.2d 147, 145 A.D.2d 49. Landlord And Tenant 296(2)

Creditor's endorsement of "full payment" check from debtor for less than amount owed with notation "under protest" was sufficient to show its intent to preserve rights to balance of debt and effectively precluded accord and satisfaction or any other prejudice to rights reserved, under McKinney's Uniform Commercial Code § 1-207, regardless of whether underlying transaction was contract for performance of services. Horn Waterproofing Corp. v. Bushwick Iron & Steel Co., Inc., N.Y.1985, 497 N.Y.S.2d 310, 66 N.Y.2d 321, 488 N.E.2d 56. Accord And Satisfaction 11(3)

Where the reservation of rights made by plaintiff seller, in respect to accepting defendants' partial payment check, purportedly representing payment in full, for merchandise which allegedly arrived in a damaged condition, was unequivocal, explicit and unambiguous, and where plaintiff not only cited its reservation of rights on the back of the check, but further informed defendants of said reservation by letter immediately thereafter, the reservation was more than adequate to satisfy the intent of the Uniform Commercial Code, and there was no accord and satisfaction. Kroulee Corp. v. A. Klein & Co., Inc., N.Y.Sup.1980, 426 N.Y.S.2d 206, 103 Misc.2d 441. Accord And Satisfaction 11(3)

When party endorses final payment check "without prejudice and under protest," he reserves right to demand balance alleged to be due and negotiation of check does not effect an accord and satisfaction. Lange-Finn Const. Co., Inc. v. Albany Steel & Iron Supply Co., Inc., N.Y.Sup.1978, 403 N.Y.S.2d 1012, 94 Misc.2d 15. Accord And Satisfaction 11(3)

Landowner did not waive right to recover excess costs and fees paid to holders of deed of trust in connection with sale of property to third party, by not asserting at closing that his payment was made under protest, but rather earlier letter from landowner's attorney, informing holders that performance would be "under protest," was in compliance with Uniform Commercial Code (UCC) provision allowing reservation of rights by party performing or promising performance; statute, which applied because payment was made by check, authorized protest either before or during performance, but did not require that protest be made at any more than one of those times. Margason v. Roberts, Colo.App.1995, 919 P.2d 818, modified on denial of rehearing, certiorari denied. Accord And Satisfaction 11(3)

Doctor's acceptance and negotiation of check tendered by health group that had terminated her employment was accord and satisfaction of doctor's claims for salary owed upon termination, including disputed earlier deduction from her pay, as it was undisputed that doctor and health group disagreed upon amount of back pay doctor was actually owed, letter in which health group tendered check clearly conditioned tender as full and complete payment of all claims pertaining to employment, and letter further emphasized that doctor should return check immediately if it was unacceptable to her. Habachy v. Georgia Health Group, P.C., Ga.App.1993, 427 S.E.2d 808, 207 Ga.App. 288. Accord And Satisfaction 11(2)

Endorsement providing "With reservation of all our rights," which creditor placed on checks received from debtor in amounts less than full amount of debt due, constituted an "explicit reservation of rights" within this section providing that a party who with explicit reservation of rights performs or promises performance or assents to performance in manner demanded or offered by other party does not thereby prejudice rights reserved. Baillie Lumber Co. v. Kincaid Carolina Corp., N.C.App.1969, 167 S.E.2d 85, 4 N.C.App. 342. Accord And Satisfaction 7(1)

Equipment lessor who received check from lessee for rent containing words "CASHING CONSTITUTES PAYMENT IN FULL" and who crossed out the conditional language and notified lessee of its actions, explicitly reserved rights as required by the UCC and suit for balance of rent owed was not barred by accord and satisfaction. Ditch Witch Trenching Co. of Kentucky, Inc. v. C & S Carpentry Services, Inc., Ky.App.1991, 812 S.W.2d 171. Accord And Satisfaction 11(3)

Section of Uniform Commercial Code, [V.A.M.S. § 400.1-207], providing that party who with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by other party does not prejudice rights reserved was applicable to action of creditor in negotiating debtor's partial payment check offered in satisfaction of debt with endorsement that check was accepted "under protest and with full reservation of rights to collect the balance owing," and thus debtor's check did not constitute an accord and satisfaction. Majestic Bldg. Material Corp. v. Gateway Plumbing, Inc., Mo.App. E.D.1985, 694 S.W.2d 762. Accord And Satisfaction 11(2)

Debtor's issuance of check for amount less than that owed creditor, with notation "final payment" on its face, together with creditor's deposit of check in its bank account, constituted accord and satisfaction; although amount of check matched amount on prior invoice, dispute over amount owed existed at time check was offered. Creative Marketing Sales, Inc. v. Rayborn, La.App. 5 Cir.1993, 615 So.2d 1107. Accord And Satisfaction 11(2)

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Reservation of rights insufficient

Endorser's statement of protest after crossing through statement that acceptance and negotiation of check constituted payment in full did not prevent negotiation of check from giving rise to accord and satisfaction under Illinois or Texas law. Western Branch Holding Co. v. Trans Marketing Houston, Inc., E.D.Va.1989, 722 F.Supp. 1339. Accord And Satisfaction 11(3)

Check issued by buyer to seller containing "settlement in full" notation created binding accord and satisfaction upon seller's deposit, notwithstanding "reservation of rights" language added to instrument by seller at time of its endorsement. Stultz Elec. Works v. Marine Hydraulic Engineering Co., Me.1984, 484 A.2d 1008. Accord And Satisfaction 11(2)

Endorsement of debtor's check by creditor on which debtor had placed restriction "deposit constitutes acceptance as payment in full for all claims," even though creditor added language "under protest, all rights reserved," resulted in accord and satisfaction and thus creditor could not maintain action for remainder of sums allegedly due. Hearst Corp. v. Lauerer, Markin & Gibbs, Inc., Ohio App. 6 Dist.1987, 524 N.E.2d 193, 37 Ohio App.3d 87. Accord And Satisfaction 11(3)

Even if provision of Uniform Commercial Code, which permitted party to assent to performance in manner demanded by other party while explicitly reserving rights, applied to modify common law doctrine of accord and satisfaction in setting of full payment check, insureds nevertheless discharged insurer from additional liability on claim by cashing insurance check and retaining proceeds despite conditional language, where insureds merely struck out conditional language placed on check, and failed to write any language regarding their reservation of rights on check. Nelson v. Fire Ins. Exchange, Ill.App. 2 Dist.1987, 510 N.E.2d 137, 109 Ill.Dec. 516, 156 Ill.App.3d 1017, appeal denied 515 N.E.2d 112, 113 Ill.Dec. 303, 116 Ill.2d 562. Accord And Satisfaction 11(3)

Endorsement of a check containing "receipt in full" language does not operate as a waiver, provide conclusive evidence that no additional amounts are due, or otherwise operate as a binding release, unless the party to be charged was clearly informed that acceptance of payment would have that result. Bardi v. Farmers Fire Ins. Co., N.Y.A.D. 3 Dept.1999, 687 N.Y.S.2d 768, 260 A.D.2d 783, leave to appeal denied 697 N.Y.S.2d 563, 93 N.Y.2d 815, 719 N.E.2d 924, reargument denied 702 N.Y.S.2d 587, 94 N.Y.2d 839, 724 N.E.2d 379. Accord And Satisfaction 11(2)

Plaintiffs' letter failed to reserve rights under Uniform Commercial Code section pertaining to acceptance under reservation of rights; plaintiffs accepted and deposited check for $30,000, explicitly tendered by defendants in full settlement of all claims, without any restrictive endorsement or other contemporaneous or prior reservation of rights, and not until nearly one week later did plaintiffs purport to reserve their rights by letter. McKinney's Uniform Commercial Code § 1-207. Sarbin v. Southwest Media Corp., N.Y.A.D. 1 Dept.1992, 578 N.Y.S.2d 571, 179 A.D.2d 567. Accord And Satisfaction 11(2)

Payee's mere scratching out of final payment conditions on check before endorsing and cashing it was not explicit and unambiguous reservation of payee's rights and, thus, payee could not maintain action for balance of monies allegedly due him; payee was required to further add words clearly bespeaking reservation of rights. Sullivan v. Conant Valley Associates, Ltd., N.Y.Sup.1990, 560 N.Y.S.2d 617, 148 Misc.2d 483. Accord And Satisfaction 11(3)

Section of Uniform Commercial Code providing that party who, with explicit reservation of rights, performs or assents to perform in manner demanded or offered by other party does not prejudice rights reserved did not apply to endorsement of check proffered by insurer in "full settlement" of tort claim for property damage to automobile, even though claimant, prior to endorsement, wrote "under protest" thereon, and thus acceptance and deposit of the tendered check constituted accord and satisfaction irrespective of conditional endorsements. Clarke v. Yvans, N.Y.City Civ.Ct.1988, 530 N.Y.S.2d 465, 140 Misc.2d 129. Accord And Satisfaction 11(3)

Even if section of Uniform Commercial Code governing performance or acceptance under reservation of rights applied to accord and satisfaction, corporation's attempt to reserve its rights when it cashed check of partnership paying corporation for portion of disputed amount of moving services provided by corporation failed to comply with such section, where no reservation by corporation was attached to check at time it was cashed, corporation merely sent letter subsequent to cashing of check purporting to reserve its rights, and partnership never had opportunity to consider whether to accept corporation's decision or stop payment on check once corporation declined to accept check in full satisfaction of debt. Air Van Lines, Inc. v. Buster, Alaska 1983, 673 P.2d 774. Accord And Satisfaction 11(2)

Alteration of debtor's condition from face of check is insufficient to defeat common-law rule of accord and satisfaction, nor may creditor insert provision on instrument that it is accepted only as part payment and without prejudice to his claim for full payment of balance. Trevino v. Brookhill Capital Resources, Inc., Tex.App.-Hous. (1 Dist.) 1989, 782 S.W.2d 279, writ denied, rehearing of writ of error overruled. Accord And Satisfaction 11(3)

Hospital's decision to deposit check sent by health insurer with transmittal letter stating that no further benefits were payable did not alone establish accord and satisfaction; the letter failed to state that the hospital would be deemed to agree with the insurer if the hospital cashed the check. St. Mary's Hosp., Inc. v. Schocoff, Fla.App. 4 Dist.1999, 725 So.2d 454. Accord And Satisfaction 11(2)

No accord and satisfaction occurred when lender cashed check tendered by comaker of note even though check included notation "final payment of note"; letter accompanying check acknowledged full amount owing, and merely reflected comaker's belief that parties had agreed that he would be released if he paid one half of undisputed amount. American Bank & Trust Co. v. Hannie, La.App. 3 Cir.1990, 568 So.2d 216, writ denied 572 So.2d 64. Accord And Satisfaction 11(2)

Creditor, who was payee of check tendered in full and final performance of disputed obligation, could not, by noting on check a reservation of rights, cash the check and thereafter successfully rely on the reservation of rights to defeat express, written condition inscribed on the check by debtor that acceptance constituted payment in full. Eder v. Yvette B. Gervey Interiors, Inc., Fla.App. 4 Dist.1981, 407 So.2d 312. Accord And Satisfaction 11(3)

Where payee scratched out drawer's words on back of check, "This is the last check to be made payable to the named person for wages, vacation and off days by [drawer]," and then merely endorsed the check with words "without recourse," such actions by payee did not indicate "explicit reservation of rights" as required under statute, and thus such payments constituted accord and satisfaction of payee's claim against drawer. Bivins v. White Dairy, Ala.Civ.App.1979, 378 So.2d 1122, certiorari denied 378 So.2d 1125. Accord And Satisfaction 11(3)

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Questions of fact

In action brought by seller against buyer, summary judgment in favor of buyer was precluded by existence of factual issues concerning whether seller waived its rights to additional two percent payment by accepting amount offered by buyer, in view of fact that seller explicitly reserved its rights in letter to buyer. Continental Information Systems Corp. v. Mutual Life Ins. Co. of New York, N.Y.A.D. 4 Dept.1980, 432 N.Y.S.2d 952, 77 A.D.2d 316. Judgment 181(29)