Sharp v. Conti

NOURSE, P. J. Plaintiff sued and recovered judgment on a contract for the sale and delivery of flour.

The contract obligated the plaintiff to deliver the flour to the defendant in San Jose, California, deliveries to begin on January 1, 1938, in accordance with shipping instructions which were to be given by defendant. In April, 1938, defendant accepted a partial delivery, and, on June 10, 1938, notified the plaintiff that he would not accept further deliveries. The contract provided that, upon failure of the defendant to furnish shipping instructions, the contract would be automatically extended “until Buyer furnishes shipping instructions.” On June 10, 1938, the plaintiff received from the defendant a check for $318.50 upon which was written the words “Paid in full to date.” The plaintiff did not cash the cheek, but upon observing this notation, he had it certified and thereupon notified the defendant that he would not accept the check as payment of the money due under tbe contract.

In addition to his general denials of the allegations of the complaint, the- defendant set up two special defenses—one pleading a failure of consideration because the flour was defective, the other pleading an accord and satisfaction because of the check transaction of June 10th. The trial court found against both of these defenses, and found in favor of the allegations of the complaint, fixing the damages at the difference between the contract price and the market price of the flour on the date of the breach of the contract.

In appealing from the judgment the appellant raises three points which we will take in order. It is first argued that the trial court erred in finding that there was no accord and satisfaction. The undisputed evidence is that at the time the check was delivered the appellant owed the respondent $145 on an overdue account covering government processing taxes, and that the balance of the check—$173.50—represented the exact amount due for flour theretofore delivered under contract. There was evidence that there was no dispute over [1009]either of these items; there was evidence indicating that the appellant thought there was a complete settlement; there was no evidence that respondent had made a claim for any amount due on account of the undelivered part of the flour, or that the parties had any dispute on that score; but there was also evidence supporting the finding that neither party at the time treated the transaction as a full accord and satisfaction of the sale contract. The trial court accepted respondent’s testimony that the check was given merely in payment of the invoice for flour delivered and for the unrelated item of processing taxes. Thus there is absent the essential elements of an accord and satisfaction—the existence of a dispute as to the amount due and the intention of the parties that the amount paid is to be accepted in extinction of the amount due. Section 1521 Civil Code; Whepley Oil Co. v. Associated Oil Co., 6 Cal.App.2d 94,112 [44 P.2d 670]; 1 Cal.Jur. p. 136.