FCX, INC. v. Ocean Oil Co. , 46 N.C. App. 755 ( 1980 )

266 S.E.2d 388 (1980)

FCX, INC.
v.
OCEAN OIL COMPANY, formerly Sentry Oil Co., Inc., James Baxter Eubanks and wife, Sarah L. Eubanks.

No. 7910SC665.

Court of Appeals of North Carolina.

May 20, 1980.

E. Ray Briggs, Raleigh, for plaintiff-appellee.

Vaughan S. Winborne, Raleigh, for defendants-appellants.

ARNOLD, Judge.

It is plaintiff's position that at the meeting on 11 July 1978 the parties reached an account stated, agreeing that the amount due from defendants to plaintiff was $38,322.49. The affidavits presented by the plaintiff on its motion for summary judgment, and the first paragraph of defendant's 3 August 1978 letter to plaintiff support this position. The remainder of defendant's letter, however, and his affidavit in response to plaintiff's motion for summary judgment indicate defendants' belief that they are entitled to a set-off against this amount, and that what was actually reached at the 11 July meeting was an agreement that $38,322.49 was the correct balance for the ledger sheets, but not necessarily a final determination of what defendants actually owed to plaintiff. This situation is analogous to that in Nello L. Teer Co. v. Dickerson, Inc., 257 N.C. 522, 126 S.E.2d 500 (1962). There the court noted that while the parties did not dispute the amount plaintiff had charged defendant for the crushed rock furnished to defendant, defendant did contend that the plaintiff had agreed to make an "equitable adjustment" in the balance due because the rock delivered did not meet the contract specifications. The court said: "The defendant's theory of the case seems to be that although it did not dispute the amounts plaintiff had charged it for the [crushed rock] represented by the two invoices, those charges did not represent an account stated in the sense of an agreement with respect to the totality of the transactions between plaintiff and defendant, i. e., a final settlement between them. Defendant denied that the parties had either expressly or impliedly struck a balance in their claims against each other and agreed upon . . . the amount which defendant should pay to plaintiff in final settlement of all claims existing between them." Id. at 529-30, 126 S.E.2d 506.

An account stated need not cover all the dealings between the parties; since an account stated is nothing more than an agreement between the parties, it extends only to the items they considered in reaching their agreement. Id. In the present case, defendants do not deny that $38,322.49 represents the correct balance of the ledger sheets of their account with plaintiff. To that extent, it is clear that the parties reached an account stated. Defendants do contend, however, that they did not agree to $38,322.49 as a final settlement, because they are entitled to a set-off. "In an action on an account stated, the party against whom the balance is claimed may set off against it any balance which he claims from items not included in the settlement." Id. at 531, 126 S.E.2d 507. Whether the meeting of 11 July resulted in an account stated as to the totality of the transactions between the parties, or only as to the balance of the ledger sheets, is a material question of fact which must be decided by a jury. Summary judgment for the plaintiff was inappropriate. Cf. Carroll v. McNeill Industries, Inc., 37 N.C.App. 10, 245 S.E.2d 204, affirmed 296 N.C. 205, 250 S.E.2d 60 (1978).

Defendants assign error to the denial of their motion for summary judgment, arguing that plaintiff's retention of their full payment cashier's check bars it from any further recovery. Plaintiff argues that by the mere retention of the check it has not converted the funds to its own use or otherwise accepted them as full payment of defendants' account.

When this action goes to trial, the jury may find that at the 11 July meeting the parties reached an account stated as to the totality of the transactions between them, or that they reached an account stated only as to the balance of the ledger sheets. If the jury finds the former, the amount due from defendants to plaintiff will have become liquidated, and in that case the cashier's check from defendants for a lesser amount will have been an accord and satisfaction only if it is also found that there was new consideration for the payment of part in discharge of the whole. Baillie Lumber Co., Inc. v. Kincaid Carolina Corp., 4 N.C.App. 342, 167 S.E.2d 85 (1969); 1 Am.Jur.2d, Accord & Satisfaction §§ 5 & 12. If, on the other hand, the jury finds that the final amount due from defendants to plaintiff was still in dispute after the 11 July meeting, defendants' payment of a lesser amount on condition was an accord and satisfaction, or a compromise and settlement, if it was accepted by plaintiff. G.S. 1-540; 1 Am.Jur.2d, Accord & Satisfaction §§ 5 & 12.

We find that plaintiff's retention of the cashier's check, though the check was not deposited, was sufficient acceptance of the lesser amount to result in an accord and satisfaction or compromise and settlement. A cashier's check is paid for in advance, and is the next thing to cash. Such a check is not subject to countermand, 10 Am.Jur.2d, Banks § 544, and is considered accepted by the bank for payment by the act of its issuance. 10 Am.Jur.2d, Banks § 643. "Cashier's checks . . . are regarded substantially as the money which they represent. . . ." 10 Am.Jur.2d, Banks § 544, at 518-19. It has been held that money tendered by the debtor as full payment of his debt, and taken by the creditor, claiming a balance still due, was accepted on the conditions under which it was tendered. Cline v. Rudisill, 126 N.C. 523, 36 S.E. 36 (1900). The court did not require that the creditor deposit or otherwise actually use the money. Here, plaintiff's retention of the cashier's check in spite of defendants' requests that it be returned is equally an acceptance. If the jury finds that the account between the parties was unliquidated, or that it was liquidated, but there was new consideration for the acceptance of the check, plaintiff is barred from further recovery.

Because material issues of fact exist, defendants were not entitled to summary judgment. Defendants' third assignment of error is without merit. The questions of fact in this controversy must be resolved by a jury, and, accordingly, the order of the trial court is

Reversed.

PARKER and WEBB, JJ., concur.