the parties. Under paragraph one, Nevets agreed to pay the money owed to NIAC under a definite schedule. Under paragraph two, NIAC agreed to supply Nevets with five hundred new VCPs. Finally, both parties agreed, under paragraph three, not to pursue their respective claims further. All these conditions (i.e., payment by Nevets, replacement by NIAC, and withdrawal of NIAC's claims) have been satisfied by the parties' performance, with the exception of the withdrawal of this action by Nevets. In addition, the portions of the agreement left open to further negotiation were made definite and accepted by the subsequent performance of the parties pursuant to the agreement.
Nevets' arguments in opposition to these conclusions are unpersuasive. Although Nevets questions the meaning of the term "this matter" as used in paragraph three, Nevets has failed to show it is ambiguous. When read in context of paragraphs one and two, "this matter" clearly refers to NIAC's claim against Nevets for $ 189,961.11 and Nevets' claim against NIAC for the losses incurred on the defective VCPs. Neither party has presented any evidence showing "this matter" could refer to any other dispute between the parties. To the contrary, the record shows these claims were the only disputes between Nevets and NIAC at the time. As well, counsel to Nevets conceded at oral argument there were no other disputes between the parties at the time the 24 December 1985 Letter was signed and accepted by Nevets and NIAC. Accordingly, the 24 December 1985 Letter constitutes a complete, unambiguous and binding settlement agreement which operates to preclude this action by Nevets.
2. The 27 December 1985 Letter
Assuming it is true the 27 December 1985 Letter was mailed to and received by NIAC, Nevets' argument that it displays an intent not to be bound by the 24 December 1985 Letter is also unpersuasive. Nevets has not shown a lack of intent by Parker when he signed the 24 December 1985 Letter. Nevets does not create even "metaphysical doubt" by its submissions. Matsushita, 475 U.S. at 586. As the Supreme Court has held with regard to a defendant's motion for summary judgment, "the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. The submissions in this case do not even equal the insufficient "scintilla" standard.
The unsworn contentions presented by Nevets in opposition to this motion are little more than a smoke screen, which does not present a genuine issue of material fact to deny NIAC's motion for summary judgment. Nevets has in fact refrained from arguing Parker's lack of memory bears on the construction of the 24 December 1985 Letter; the brief filed in opposition to this motion nowhere claims Parker's lack of memory renders the 24 December 1985 Letter unenforceable. Instead, Nevets has relied solely on its argument that the 24 December 1985 Letter is too ambiguous to be construed as a binding agreement.
The fact that the 24 December 1985 Letter is unambiguous and constitutes a binding settlement agreement cannot be neutralized by Nevets' claim that the 27 December 1985 Letter raised an issue with respect to the parties' intent to bind Nevets by the 24 December 1985 Letter. Even if Parker subjectively intended not to be bound by the 24 December 1985 Letter when he signed it (a contention not established by affidavit or otherwise), the outward manifestation of his intent to bind Nevets by signing the agreement cannot be undone, in the absence of fraud, mistake, duress or some other contract defense. See Zapanta v. Isoldi, 212 N.J. Super. 678, 687, 515 A.2d 1298 (1986) ("Motivations or mental reservations cannot affect a written agreement. If they were permitted to do so, a written agreement would be worthless and the source of much litigation."); see also Dome Petro., Ltd. v. Employers Mut. Liability Ins. Co., 767 F.2d 43, 42 (3d Cir. 1985) (interpretation of contract depends not on "discovery of undisclosed intent," but on manifestation of intent in language of contract and surrounding circumstances); Mellon Bank, 619 F.2d at 1009 (parties bound by terms of their contract absent illegality, unconscionableness, fraud, duress or mistake); J. Calamari & J. Perillo, supra, § 2-2 (discussion on "objective theory of contracts"). A subsequent change of mind does not bear on the validity or existence of the original agreement.
As such, the 27 December 1985 Letter could only be seen as an attempt to modify the terms of the 24 December 1985 Letter. An attempt to modify an existing agreement must be supported by new consideration. Barnhart v. Dollar Rent A Car Sys., 595 F.2d 914, 919 (3d Cir. 1979) (Pennsylvania law); Ross v. Orr, 3 N.J. 277, 281-82, 69 A.2d 730 (1949). Nevets has not argued the 27 December 1985 Letter was supported by new consideration and there is nothing in the letter to suggest consideration existed. Indeed, there is nothing to suggest, much more establish, the modification or recission of the 24 December 1985 Letter which Nevets suggests was effected by the 27 December 1985 Letter. The 24 December 1985 Letter is a valid, enforceable contract and operates to bar this action by Nevets.
NIAC has further argued the 24 December 1985 Letter constitutes a release by Nevets of its claim against NIAC regarding the defective VCPs. Nevets has argued, without submitting an affidavit or other competent submission, there is a factual issue whether Parker willingly and knowingly accepted the terms of the 24 December 1985 Letter. Additionally, Nevets argues there was disagreement as to the scope of the release and neither party thought a conclusive settlement was established by the 24 December 1985 Letter.
Once again, it is important to note there is no dispute as to the genuineness of or authority for Parker's signature on the 24 December 1985 Letter. Essentially, Nevets does not argue Parker unwillingly and unknowingly accepted the terms of the 24 December 1985 Letter on behalf of Nevets. The general rule in New Jersey is:
where a party affixes his signature to a written instrument, such as a release, a conclusive presumption arises that he or she read, understood and asserted to its terms and will not be heard to complain that the affect of the act of signing was not comprehended.
Borbely v. Nationwide Mut. Ins. Co., 547 F. Supp. 959, 977 (D.N.J. 1981) (quoting Van Houten Service, Inc. v. Shell Oil Co., 417 F. Supp. 523, 527 (D.N.J. 1975), aff'd mem., 546 F.2d 421 (3d Cir. 1976). A release is binding and will be enforced according to the terms the releasor "willingly and knowingly" accepted. Raroha v. Earle Finance Corp., Inc., 47 N.J. 229, 234, 220 A.2d 107 (1966).
In executing the 24 December 1985 Letter, Parker willingly and knowingly accepted the terms of paragraph three, which stated Nevets agreed to withdraw its claims against NIAC. All Nevets contends is that a few days after reviewing the 24 December 1985 Letter, Marcus and Parker expressed some dissatisfaction with it. This does not raise a genuine issue of material fact with regard to whether the agreement was binding when it was signed. The 26 December 1985 Letter, which finalized the authorized service center portion of the 24 December 1985 Letter, was confirmed by Parker before the 27 December 1985 Letter was sent. In addition, NIAC resumed "open credit" to Nevets as called for by the 24 December 1985 Letter. Thus, there existed a final and complete settlement agreement before the 27 December 1985 Letter was sent.
In addition, Nevets' argument that the interpretation of the terms "this matter" as used in the 24 December 1985 Letter cannot be determined as a matter of law is misguided. The case upon which Nevets relies in making this argument, Novak v. General Electric Corp., 282 F. Supp. 1010 (E.D. Pa. 1967), is distinguishable from the present case because in that case the defendant was asserting that a general release precluded it from asserting claims which were unknown at the time of the execution of the release. Id. at 1021-23. In the present case, Nevets is asserting the release did not apply to a claim existing and known to the parties at the time the release was signed. Thus, the issue can be decided as a matter of law. Because, as discussed above, the term "this matter" related to the instant claim, the 24 December 1985 Letter acted as a release of Nevets' claim against NIAC.
E. Accord and Satisfaction
An accord and satisfaction is an agreement which, upon its execution, completely terminates a party's existing rights and constitutes a defense to any action to enforce pre-existing claims. J. Calamari & J. Perrillo, supra, § 4-11 at 214-215. An accord is an agreement whereby one party agrees to make some performance in exchange for extinguishment of a debt or other obligation; execution of an accord constitutes a satisfaction and extinguishes the debt. Id.
In New Jersey there are three elements to an accord and satisfaction:
(a) a bona fide dispute as to the amount owed; (b) a clear manifestation of intent by the debtor to the creditor that payment is in satisfaction of the disputed amount; and (c) acceptance of satisfaction by the creditor.
Loizeaux Builders Supply Co. v. Donald B. Ludwig Co., 144 N.J. Super. 556, 564-65, 366 A.2d 721 (L. Div. 1976) (citing United States for use of Glickfeld v. Krendel, 136 F. Supp. 276, 282 (D.N.J. 1955)); A.G. King Tree Surgeons v. Deeb, 140 N.J. Super. 346, 348-49, 356 A.2d 87 (1976).
In this case, all three elements of an accord and satisfaction are present. According to Nevets' own allegations at the 15 December 1985 meeting it presented a claim to NIAC for over $ 500,000 in losses attributable to the allegedly defective VCPs. At the same time, however, NIAC was asserting Nevets owed more than $ 189,000 for the purchase of the VCPs. These conflicting claims establish there was a dispute between the parties over the amounts owed.
Additionally, the 24 December 1985 Letter establishes a clear manifestation of intent that the exchange of consideration would settle the disputes between the parties. In exchange for Nevets' promise to pay $ 189,961.11, NIAC would forego making any claim against Nevets "on this matter." Both of these conditions were fulfilled. Similarly, in exchange for NIAC's promise to provide five hundred refurbished VCPs, to resume "open credit" to Nevets and to retain Parker's business as an authorized service center (all of which were satisfied), Nevets would agree to withdraw its claim against NIAC. There is no dispute that Nevets at that time had asserted a claim against NIAC for damages due to the defective VCPs. Thus, the clear manifestation of intent in making these promises was to satisfy the existing claims.
Finally, all the conditions of the accord were satisfied by each party. Nevets paid the money it owed to NIAC and accepted the benefits of all the promises made by NIAC. As to Nevets' assertion that the five hundred VCPs received in satisfaction of Nevets' claim were defective as well, Plaintiff's Opposition Brief at 18, it is instructive to note there have been no affidavits submitted in support of that allegation. Nevets also does not support its allegation with reference to any fact in the record. In opposing a motion for summary judgment, a party must support its allegations with specific facts:
Rule 56(e) requires the non-moving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file" designate "specific facts showing that there is a genuine issue for trial."