Messer v. Tait's, Inc.

California Court of Appeal Mar 18, 1932 No. Docket No. 7920.Published

Before: Spence

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Holding. The court held that the acceptance of a check for a smaller amount than claimed does not constitute an accord and satisfaction as a matter of law unless the check is explicitly offered on the condition that it be accepted as full payment. Furthermore, the court affirmed that payments directed toward specific current items do not destroy the character of an open book account for statute of limitations purposes.

Issues

Whether the acceptance of checks accompanied by a letter stating they balanced all accounts constituted an accord and satisfaction as a matter of law.
Whether the statute of limitations barred the recovery of debts on open book accounts where the debtor directed payments to specific current items.

Disposition. affirmed

Quotations verified verbatim against the opinion

“it must unequivocally appear that the check is offered only upon condition that it be accepted, if accepted at all, as full satisfaction of the disputed claim.”

“the statute of limitations did not commence to run as to each account until the date of the last entry of that account”

SPENCE, J.

This isan appeal by defendant from a judgment in favor of plaintiff in the sum of $2,402.87.

We need only consider the count of the complaint alleging the indebtedness of defendant upon an open book account for goods sold and delivered to defendant by plaintiff’s assignors. By way of defense defendant pleaded the statute of limitations. Upon the trial defendant further urged the defense of accord and satisfaction, although this defense was not pleaded. The trial court found against the defendant upon both defenses except that it found that the statute of limitations had run against the small amount claimed to be due upon the account with defendant’s restaurant in Stockton.

The evidence showed that the eight restaurants conducted by defendant did business with the various “Dohrmann Companies” through which plaintiff claims as assignee. Each of these companies kept its own accounts and a separate book account was kept by each of the companies with respect to each of defendant’s restaurants with which it did business. The extensive business dealings between defendant’s restaurants and the companies continued over a period of many years. Owing to the view we take of the questions presented on this appeal, we deem it unnecessary to go into detail concerning the history of the “Dohrmann Companies” or concerning each of the separate accounts referred to above.

It is appellant’s contention that the major portion of the amount awarded to respondent was improperly awarded because of an alleged accord and satisfaction in 1925 and

[700]

in any event because of the bar of the statute of limitations. We find no merit in these contentions. Although the defense of accord and satisfaction was not pleaded, we may assume that the issue was properly before the court. Nevertheless the trial court found against the appellant on this issue and it cannot be said as a matter of law that the trial court erred in so doing. The evidence was conflicting as to whether there was any oral agreement adjusting the various accounts as contended by appellant. A payment was made by appellant on March 19, 1925, accompanied by a letter addressed to Dohrmann Hotel Supply Company, being one of the “Dohrmann Companies”. It read in part:

Messer v. Tait's, Inc.

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SPENCE, J.

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