Moore v. Greene , 237 N.C. 614 ( 1953 )

75 S.E.2d 649 (1953) 237 N.C. 614

MOORE
v.
GREENE.

No. 452.

Supreme Court of North Carolina.

April 29, 1953.

A. L. Purrington, Jr., Raleigh, for plaintiff appellee.

T. Lacy Williams, Raleigh, for defendant appellant.

DEVIN, Chief Justice.

The policy of the law favors the settlement of business disputes. By statute it is provided that the acceptance of a less amount than that claimed, in satisfaction, shall operate as a complete discharge thereof. G.S. § 1-540.

The principle is well recognized and enforced in this jurisdiction that when in case of a disputed account between parties a check is given and received under such circumstances as clearly import that it is intended to be, and is tendered, in full settlement of the disputed items, the acceptance and cashing of the check and the appropriation of the proceeds will be regarded as complete satisfaction of the claim. One party will not be allowed to accept the benefit of the check so tendered and at the same time retain the right to sue for an additional amount. Kerr v. Sanders, 122 N.C. 635, 29 S.E. 943; Davis Sulphur Ore Co. v. Powers, 130 N.C. 152, 41 S.E. 6; Aydlett v. Brown, 153 N.C. 334, 69 S.E. 243; Rosser v. Bynum & Snipes, 168 N.C. 340, 84 S.E. 393; Mercer v. Frank Hitch Lumber Co., 173 N.C. 49, 91 S.E. 588; Blanchard v. Edenton Peaunt Co., 182 N.C. 20, 108 S.E. 332; DeLoache v. DeLoache, 189 N.C. 394, 127 S.E. 419; Lawson v. Bank of Bladenboro, 203 N.C. 368, 166 S.E. 177; Durant v. Powell, 215 N.C. 628, 634, 2 S.E.2d 884. "Under a uniform construction of our statute, C.S. § 895 [now G.S. § 1-540], as announced in a long line of decisions, it is held with us that where two parties are in dispute as to the correct amount of an account, and one sends the other a check, or makes a payment, clearly purporting to be in full settlement of the claim, and the other knowingly accepts it upon such condition, this will amount to a full and complete discharge of the debt." Blanchard v. Edenton Peanut Co., supra [182 N.C. 20, 108 S.E. 333].

In the case at bar a controversy had arisen as to the amount due plaintiff for his one-third share in the net profits of the business for the year ended July 1, 1948. The defendant tendered him a statement showing the amount the defendant contended was due, together with a check for the amount with the words written on the face of the check "For Settlement." Obviously the defendant intended the check to evidence a final settlement of the matter of plaintiff's share in the net profits of the business. The plaintiff's services had been terminated. The business relations between the parties had ceased. The only thing remaining was to determine the amount due plaintiff under the contract. For this purpose the defendant employed an accountant, made up the final settlement, and on October 6, 1948, mailed it to plaintiff with check for the amount he claimed to be due. The plaintiff after some days of consideration wrote defendant setting out his disagreement and his conflicting claim, and stating the condition under which he would accept the check in settlement and "close the issue." The plaintiff had a right to decline the proffered settlement and sue for the full amount he claimed was due. But after waiting three weeks he cashed the check and received the money tendered. Two years later he instituted this action. 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.

The facts material to the question here presented were not controverted. They appear from plaintiff's testimony. We think the defendant was entitled to the allowance of his motion for judgment of nonsuit as to plaintiff's first cause of action.

As to plaintiff's second cause of action a different conclusion is indicated. The jury found that the sum of $83.33 was improperly deducted from plaintiff's salary for the month of June 1948, and judgment was rendered accordingly. The result will not be disturbed. The check for the diminished salary was deposited to plaintiff's credit in his absence and there was no reason why he should not sue to recover the amount thus improperly deducted. The trial was free from error.

The judgment below will be modified in accordance with this opinion.

Modified and affirmed.