Barber v. White , 46 N.C. App. 110 ( 1980 )

264 S.E.2d 385 (1980) 46 N.C. App. 110

John W. BARBER
v.
William H. WHITE and wife, Mrs. William H. White.

No. 7920DC503.

Court of Appeals of North Carolina.

April 1, 1980.

Brown, Holshouser & Pate by W. Lamont Brown, Southern Pines, for plaintiff-appellee.

Rodney W. Robinson, Pinehurst, for defendants-appellants.

ARNOLD, Judge.

Defendants' counsel has failed to comply with Rules 9(b)(1)(x) and (xi), 10(a) and (b)(1), and 28(b)(3) of the Rules of Appellate Procedure. It appears from the record that defendants assign error to the denial of a motion to dismiss, but the only indication in the record that such a motion was made and denied appears upon the face of the judgment. Neither a written motion nor an indication that an oral motion was made in open court appears. No exceptions have been set out in the record, or referred to in defendants' brief. The brief makes no reference to any assignment of error. Nevertheless, pursuant to Rule 2 of the Rules of Appellate Procedure we have considered defendants' appeal upon its merits.

Defendants would be entitled to have their motion for dismissal granted only if the evidence presented established an accord and satisfaction as a matter of law. An accord is an agreement between the parties that discharges a contract or settles a cause of action, and a satisfaction is the execution of that agreement. Prentzas v. Prentzas, 260 N.C. 101, 131 S.E.2d 678 (1963); Baillie Lumber Co., Inc. v. Kincaid Carolina Corp., 4 N.C.App. 342, 167 S.E.2d 85 (1969). Plaintiff argues that whether the parties intended to reach an accord and satisfaction is a question for the jury, but the cases which stand for that proposition are distinguishable from the one now before us. See, e. g., Allgood v. Wilmington Savings & Trust Co., 242 N.C. 506, 88 S.E.2d 825 (1955) (whether a receipt signed by plaintiff for a portion of insurance benefits was an acceptance of the portion in full settlement of her claim); Blanchard v. Edenton Peanut Co., 182 N.C. 20, 108 S.E. 332 (1921) (whether a check enclosed with a statement of the account marked "We enclose check to cover" was sent on condition that its acceptance would be a full settlement). The present case is concerned with what is commonly known as a "full payment check," that is, a check marked with some indication that it is tendered in full payment of a disputed claim, and in such cases the cashing of the check has been held to be an accord and satisfaction as a matter of law. For example, in Moore v. Greene, 237 N.C. 614, 75 S.E.2d 649 (1953), the plaintiff creditor, having expressed to the debtor his dissatisfaction with the amount tendered in the check marked "For Settlement," proceeded to cash the check. The court said: "The plaintiff had a right to decline the proffered settlement and sue for the full amount he claimed was due. ... We think he made his election when he cashed the check and may not now be allowed to change his position and avoid the effect of his acceptance of the check tendered him by the defendant." Id. at 616-17, 75 S.E.2d 650. Accord, Phillips v. Phillips Construction Co., Inc., 261 N.C. 767, 136 S.E.2d 48 (1964); Davis Sulphur Ore Co. v. Powers, 130 N.C. 152, 41 S.E. 6 (1902); Brown v. Coastal Truckways, Inc., 44 N.C. App. 454, 261 S.E.2d 266 (1980).

The parties argue the effect of G.S. 25-1-207 upon the facts now before us, but in the recent case of Brown v. Coastal Truckways, Inc., supra, we determined that this statute does not apply to full payment checks. We based this holding upon the plain words of the statute, saying: "If [G.S. 25-1-207] does apply, it would be for the reason that plaintiff assented to `performance in a manner ... offered by' the defendant ... [and] [w]hen the plaintiff ... notified defendant he would not accept the check in full payment, he did not assent to `performance in a manner... offered by' the defendant. This would make G.S. 25-1-207 inapplicable...." Id. at 457, 261 S.E.2d at 268.

Plaintiff's cashing of the check marked "painting in full" established an accord and satisfaction as a matter of law. Defendants were entitled to have their motion to dismiss granted. The judgment of the trial court is

Reversed.

CLARK and ERWIN, JJ., concur.