Sylva Supply Co. v. Watt

107 S.E. 451, 181 N.C. 432, 1921 N.C. LEXIS 96

• Court: Supreme Court of North Carolina
• Decided: June 3, 1921
• Status: Published

Opinion

Stacy, J.

It will be observed tbat tbe defendant’s claim of $45 for damages to bis automobile bad been brought to plaintiff’s attention and the parties were in sharp dispute about the matter. The amount to be allowed and the method of adjustment were both in controversy. It is true the grocery account was not denied, but it clearly appears that defendant’s first check was sent “in settlement of account,” and the second was enclosed in a letter containing the statement that this “balances the account between us.” The item of $45 for damages to the automobile was deducted in both instances. There was no ambiguity or grounds for misunderstanding defendant’s tender and offer of settlement. Obviously he wanted to adjust all of their differences at one and the same time. The plaintiff had its choice, and we think it is precluded by its acceptance and election knowingly made. The check should have been returned if the conditions of its acceptance were not satisfactory, or at least, the defendant should have been given an opportunity to say whether he would waive the conditions and allow the check to be credited on account.

“If a check is sent in full payment of a debt, and the creditor receives and collects it, he is bound by the condition annexed to its acceptance. He will not be permitted to collect the check and repudiate the condition.” Aydlett v. Brown, 153 N. C., 334. And again, in Rosser v. Bynum, 168 N. C., 340, the rule is stated as follows: “It is weli recognized that when, in case of a disputed account between parties, a check is given and received clearly purporting to be in full, of when such a check is given and from the facts and attendant circumstances it clearly appears that it is to be received in full of all indebtedness of a given character or all indebtedness to date, the courts will allow to such a payment the effect contended for,” citing Armstrong v. Lonon, 149 N. C., 435; Kerr v. Saunders, 122 N. C., 635; Pruden v. R. R., 121 N. C., 511; Petit v. Woodlief, 115 N. C., 125; Koonce v. Russell, 103 N. C., 179. See, also, Mercer v. Lumber Co., 173 N. C., 49.

Plaintiff contends that the correctness of the grocery account was not in dispute and that the principles of accord and satisfaction are therefore not applicable to the facts here presented (Bogert v. Mfg. Co., 172 N. C., 248), but we must view the case in all of its bearings. The parties were caviling as to whether any allowance should be made for damages to defendant’s automobile in settling the store account. In other words, they were contending over -the question as to whether the two claims should be considered and settled together by deducting the one from the other and paying the balance, or divorce the two and consider them separately. Upon the basis of adjusting both accounts at the same time, defendant mailed his check for the difference between the two, and this was accepted by the plaintiff. Under these circumstances — the facts being admitted and not denied — we think the defendant’s motion for judgment as of nonsuit should have been allowed.

Reversed.