Dalton, J.s.c., Temporarily Assigned.
This is a contract action brought by A. G. King Tree Surgeons for the contract price of $480, plus tax and interest, for tree pruning work performed at the home of defendant George Deeb on or about May 30, 1975.
Plaintiff alleges the work was performed pursuant to an oral contract made by telephone, after an estimate of $480 had been transmitted orally, also by phone, to defendant. The work agreed on and actually performed was, according to plaintiff, the pruning of 15 trees on defendant's property.
Defendant states by way of affirmative defenses that there was no contract between the parties, and that an accord and satisfaction was reached before the filing of this lawsuit.
Although there is a dispute with respect to certain facts concerning the existence of a binding contract between the parties, there is no dispute with respect to those facts necessary to decide the issue of whether, prior to this litigation, an accord and satisfaction had been reached by the parties. The case will be decided as a matter of law on the latter issue based on those undisputed facts.
First, it is undisputed that defendant, upon receipt of the invoice for $504 (representing the $480 contract price plus $24 tax), protested to plaintiff by telephone that he had never entered into a contract for this amount and had only authorized an estimate from plaintiff, nor did he ever sign a contract or an acknowledgement of work performed. This is not, therefore, a case of a liquidated sum which is due and owing but rather a genuine dispute between the parties as to what liability, if any, defendant owes to plaintiff for the work performed.
Second, it is undisputed that shortly after this controversy arose defendant's attorney forwarded to plaintiff defendant's check in the amount of $100 with a notation typed on the reverse side (above the space for the indorser's signature) to the effect that this $100 was in full and final settlement of all claims of A. G. King against defendant for work performed in May 1975. Along with the check defendant's attorney sent a letter of transmittal which stated in no uncertain terms that although defendant denied that authorization was ever given to plaintiff to perform work for defendant, nevertheless the $100 check was submitted in good faith in an attempt to amicably settle the claim, and that if plaintiff wished to settle for this amount, he should deposit the check. Plaintiff corporation, through its president A. G. King, did deposit the check but only after he obliterated the notation placed on it by the drawer and substituted in its place a notation that the check was only in partial payment of the amount due. Based on this set of facts defendant argues that an accord and satisfaction was reached between the parties at the time the check was deposited, notwithstanding the fact that the president of plaintiff corporation altered the notation on the reverse side of the check. This court agrees.
The traditional elements of an accord and satisfaction are the following: (1) a dispute as to the amount of money owed; (2) a clear manifestation of intent by the debtor to the creditor that payment is in satisfaction of the
disputed amount; (3) acceptance of satisfaction by the creditor. U.S. for Use of Glickfeld v. Krendel , 136 F. Supp. 276, 282 (D.C.N.J. 1955).
The president of plaintiff corporation alleges, of course, that there could be no acceptance of any offer of settlement since he deliberately altered the check before depositing it, making it clear that he considered the $100 only a partial payment and not a full settlement of the matter. However, it is clear that plaintiff had no right to alter the check. If the check was unacceptable as a final settlement, plaintiff's remedy was to return the check to defendant and sue for the full amount claimed due. Plaintiff chose rather to alter the check, accept the $100 "in partial payment" and sue for the difference.
In this case, however, the check did not stand alone, it was accompanied by a letter from defendant's attorney which made it clear that (1) there was a genuine dispute between the parties as to what amount of money, if any, was due plaintiff; (2) defendant intended that the $100 check was to be in full satisfaction of the dispute between the parties, and (3) if, and ...