Witten Supply Co. v. Redmond

GRAHAM, Judge.

“Accord and satisfaction is a method of discharging a contract or cause of action, whereby the parties agree to give and accept something in settlement of the claim or demand of the one against the other, and perform such agreement, the ‘accord’ being the agreement, and the ‘satisfaction’ its execution or performance.” 1 C.J.S., Accord and Satisfaction, § 1, p. 462.

Plaintiff argues strenuously that its agreement to accept monthly installments was not an “accord” within the legal meaning of that term, contending that the agreement and the note and deed of trust were intended simply as additional security for the original debt. Even so, payment of the note would necessarily constitute payment of the original debt, for the note was in an amount sufficient to cover the amount of the debt and certain collection expenses as well. Agreements governed by the doctrine of accord and satisfaction fall into two categories. “In the one case the parties agree that the agreement itself shall operate as the satisfaction of the old right; and in the other the parties agree that it is only the performance of the agreement that shall have that effect.” Dobias v. White, 239 N.C. 409, 80 S.E. 2d 23.

Plaintiff responds by saying that the note has not been paid and therefore there has been no performance by defendants. We disagree. Defendants were entitled to have applied to the note the net proceeds from the foreclosure sale. G.S. 45-21.31 (a) (4). The net proceeds equaled the exact amount of the note. The note was surrendered to the trustee in part payment of the price bid, and plaintiff accepted the trustee’s deed in full payment of the note.

The real complaint of plaintiff seems to be that the equity of redemption was not worth the amount of the bid. However, the question of whether plaintiff received a poor bargain when it bid in the property is of no consequence at this point. The fact remains that the defendants’ debt was paid in full when plaintiff accepted the trustee’s deed in exchange for the note evidencing the debt. Plaintiff may not receive payment again through an execution sale under a judgment for the identical debt.

Plaintiff has raised several procedural points which have been considered and are overruled. A motion in the cause was not an improper procedure for seeking relief from an execution sale under the judgment. G.S. 1A-1, Rule 60(b) (5) (6). Plaintiff’s motion to dismiss was properly denied, and no prejudicial error appears with respect to any of the interlocutory orders appearing in the record.

The agreed statement of facts fully support the findings and conclusions of the trial court and entitle defendants1 to the permanent injunction granted.

Affirmed.

Judges Campbell and Britt concur.