FRUIT & PROD. PKG. CO., DIV. OF INLAND CONT. CORP. v. Stepp , 15 N.C. App. 64 ( 1972 )

189 S.E.2d 536 (1972)

FRUIT & PRODUCE PACKAGING COMPANY, DIVISION OF INLAND CONTAINER CORPORATION
v.
Leon STEPP.

No. 7229DC171.

Court of Appeals of North Carolina.

June 28, 1972.

Redden, Redden & Redden, by Monroe M. Redden, Jr., Hendersonville, for plaintiff-appellee.

Francis M. Coiner, Hendersonville, for defendant-appellant.

BROCK, Judge.

Defendant assigns as error that the court concluded that defendant failed to plead a defense of accord and satisfaction. We think that the trial judge was correct.

G.S. § 1A-1, Rule 8(c) states in pertinent part: "In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction . . . and any other matter constituting an avoidance or affirmative defense. Such pleading shall contain a short and plain statement of any matter constituting an . . . affirmative defense sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved."

Defendant's answer, quoted in the facts of this case, fails to comply with the above conditions of G.S. § 1A-1, Rule 8(c). Although defendant contends that his defense of accord and satisfaction is couched in the phraseology of his answer, we find, even with a liberal view, that the defendant only alleged that he was obligated to the plaintiff for an open account, that the account has been fully paid and satisfied, and no amount is owed. This clearly is not sufficient to give the court or the plaintiff notice of any transactions, occurrences, or series of transactions or occurrences intended to prove accord and satisfaction. The defendant-pleader failed to state with sufficient particularity the substantive elements of his affirmative defense—accord and satisfaction. See, 1 McIntosh, N.C. Practice & Procedure, 2d, § 970.65 (Supp. 1970).

In 1 Strong, N.C.Index 2d, Accord and Satisfaction, § 1, it is said:

"A compromise and settlement must be based upon a disputed claim; an accord and satisfaction may be based on an undisputed or liquidated claim.

An accord and satisfaction is compounded of two elements: An accord, which is an agreement whereby one of the parties undertakes to give or perform and the other to accept in satisfaction of a claim, liquidated or in dispute, something other than or different from what he is or considers himself entitled to; and a satisfaction, which is the execution or performance of such agreement."

In pleading the affirmative defense of accord and satisfaction, the defendant's answer should set forth and aver execution of the accord, or that there was a new promise, based on a consideration which was accepted in satisfaction. The fact that the defendant pleads payment does not permit him, under that plea, to assert the defense of accord and satisfaction. 1 Am.Jur.2d, Accord and Satisfaction, § 53. Defendant's answer, even when construed liberally, fails to state or give notice of the basic element, an accord or new promise.

Nevertheless, the District Court permitted the defendant to introduce into evidence the accepted check, with the previously mentioned notation. The notation on the check is the basis for defendant's contention that there was a discharge of the indebtedness by an accord and satisfaction.

In this case there was no evidence or allegation of communication between plaintiff and defendant concerning a dispute over the account. Nor was there evidence or allegation of negotiation or agreement between plaintiff and defendant concerning payment or acceptance of less than the full amount of the account.

"The fact that a remittance by check purporting to be `in full' is accepted and used does not result in an accord and satisfaction if the claim involved is liquidated and undisputed, under the generally accepted rule that an accord and satisfaction does not result from the part payment of a liquidated and undisputed claim. The creditor is justified in treating the transaction as merely the act of an honest debtor remitting less than is due under a mistake as to the nature of the contract." 1 Am.Jur.2d, Accord and Satisfaction, § 18, p. 317.

Defendant also assigns as error that the Court concluded that defendant is indebted to the plaintiff in the sum of $13,787.99. Defendant's only properly asserted defense is that the account has been fully paid. The evidence clearly supports the trial court's findings relating to the amount of the account. There is no evidence tending to support a payment or credit which was not properly computed by the trial court in reducing the amount of the original account to the amount it found to be due. All of the evidence supports the court's findings of fact and the facts so found support the conclusions of law and the judgment.

For reasons stated above, all of defendant's assignments of error are overruled and the judgment of the District Court is

Affirmed.

HEDRICK and VAUGHN, JJ., concur.