Blanchard v. Edenton Peanut Co.

Stacy, J.

Considering the evidence in its most favorable light for the plaintiff, the accepted position on a motion to nonsuit, we think the question of settlement by way of 'accord and satisfaction sufficiently ambiguous to require the aid and verdict of a jury.

Under a uniform construction of our statute, O. S., 895, 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. Mercer v. Lumber Co., 173 N. C., 49; Aydlett v. Brown, 153 N. C., 334; Kerr v. Sanders, 122 N. C., 635, and numerous cases of like import. The law as it prevails in this jurisdiction is succinctly stated by Mr. Justice PLolce in Rosser v. Bynum, 168 N. C., 340, as follows:

“It is well recognized that when, in ease of a disputed account between parties, a check is given and received clearly purporting to be in full or when such a check is given and from the facts and attendant circumstances it clearly appears that it is to be received in full of all indebtedness of a given character or all indebtedness to date, the courts will allow to such a payment the effect contended for,” citing a number of authorities, and this has been approved in the recent case of Supply Co. v. Watt, 181 N. C., 432.

The case of Ore Co. v. Powers, 130 N. C., 152, chiefly relied on by defendant, is not at variance with the rule above stated, nor is it more favorable to defendant’s contention, for, as appears from the last paragraph of the opinion in that case, the check in question was sent in full settlement of account, and this condition was annexed to its acceptance.' An examination of the original papers discloses this fact more clearly than is shown by the report as published.

But it is equally well established that unless the intention of the parties, as gathered from the facts in evidence, is so clearly apparent as to admit of no doubtful inference or uncertain conclusion, among men of fair, disinterested and unbiased minds, the issue must be referred to a Jury. This position is well stated in Mercer v. Lumber Co., supra, as follows:

“It is a well recognized principle here and elsewhere that when a dispute exists between two parties as to the amount of an account, and one sends another a check or makes a payment clearly purporting to be in full settlement of the claim, and the other knowingly accepts it, this will amount to an adjustment, and further action thereon is precluded. It is a question, however, of the intent of the parties, as expressed in their acts and statements at the time, and unless, on the facts in evidence, this intent is so clear that there could be no disagreement about it among men of fair minds, the issue must be decided by the jury.”

In the case at bar, we do not think it appears unequivocally that the check was sent on condition that its acceptance should amount to a settlement in full, or as a complete discharge of the debt. This may be a permissible view to take of the evidence, but not necessarily the only one. The sending of the cheek to cover what the defendant claimed was the balance due on the account does not ipso facto show conclusively that an accord and satisfaction was the condition annexed to its acceptance. The ultimate fact can only be determined by a jury under proper instructions from the court.

The contention that the plaintiff’s testimony is self-contradictory and •that he should be held to his admissions, or bound by the hurtful parts thereof, cannot avail the defendant on1 the present record; for, conceding without deciding that such a conflict exists, still, under our decisions, this does not perforce destroy his favorable testimony, but only affects its credibility, which the jury alone may pass upon. Loggins v. Utilities Co., 181 N. C., 221; Christman v. Hilliard, 167 N. C., 4, and Shell v. Roseman, 155 N. C., 90.

Tbe judgment of nonsuit will be set aside and tbe cause remanded for trial upon appropriate issues.

Reversed.