Green v. Fuller , 159 Wash. 691 ( 1930 )

I am in accord with the majority opinion except wherein it is said that the receipt therein set out evidenced an accord and satisfaction. The theory of the appellant's case was that there had been no agreement between himself and Mrs. Bushnell as to the amount of compensation which he should receive, and he sought recovery upon quantum meruit for the reasonable value of the services rendered. The theory of the respondent was that there was a definite contract as to the amount of compensation which the appellant should receive, and that he had been fully paid. The trial court rejected the theory of the appellant. If there was a contract of employment specifying the amount of compensation and there was no dispute between the parties at the time the money was paid, for which the receipt was given, then the receipt could not evidence an accord and satisfaction. The receipt did not evidence an accord and satisfaction of an unliquidated claim because the trial court rejected the theory of the appellant that he was entitled to compensation for the reasonable value of his services.

In the case of Pederson v. Tacoma, 86 Wash. 164,149 P. 643, it was said:

"But if we may assume that the city agreed that $61,342.79 was due and that the appellant was claiming $108,000, the parties might agree upon either sum, and that would be an accord and satisfaction. Where a claim is in dispute, the parties may agree upon an amount to be paid, which amount when paid will constitute an accord and satisfaction. The rule is well stated in 1 C.J., p. 551, § 71, as follows:

"``Where a claim is unliquidated or in dispute, payment and acceptance of a less sum than claimed, in satisfaction, operates as an accord and satisfaction, in the absence of fraud, artifice, mistake, or imposition, as the rule that the receiving of a part of the debt due, under an agreement that the same shall be in full satisfaction, is no bar to an action to recover the balance, does not apply, where plaintiff's claim is disputed or unliquidated. Under these circumstances there is a sufficient consideration for the settlement. The fact that the creditor was not legally bound to make any abatement of his claim, or that the amount accepted was much less than the creditor was entitled to receive and would have recovered had he brought action, or that he was induced to accept a part of his claim, by fear that he would lose the whole of it, does not in any way affect the operation of the rule, and it is of no importance which of the parties was right in his contention, or that in fact they were both wrong.'"

As I view the matter, there are no facts set out in the opinion which bring this case within that part of the rule which says that there is an accord and satisfaction for a liquidated claim when there is a dispute between the parties as to the amount due and a sum less than the greater amount claimed is paid and accepted. As stated, the case does not fall within the other branch of the rule, that of an unliquidated demand, because the trial court rejected this theory and the majority opinion sustains the trial court.

Aside from the question of the receipt, there is ample evidence to sustain the judgment. Except as herein indicated, I concur in the opinion.