Jf Wilkerson Contracting v. Sellers Mfg.

327 S.E.2d 34 (1985)

J.F. WILKERSON CONTRACTING COMPANY, INC. v. SELLERS MANUFACTURING CO., INC.

No. 8410SC574.

Court of Appeals of North Carolina.

March 19, 1985.

*35 John E. Bugg, Durham, for plaintiff-appellant.

Akins, Mann, Pike & Mercer, by J. Jerome Hartzell, Raleigh, for defendant-appellee.

ARNOLD, Judge.

Plaintiff contends that defendant owes it $7,500, an amount defendant deducted as liquidated damages from the total amount of $15,939.21 owed to plaintiff as final payment for construction work. Defendant deducted the $7,500 because plaintiff finished its work for defendant 150 days beyond the contract date and because the parties had agreed that defendant was entitled to liquidated damages of $50 per day for each day the project was not finished beyond the contract completion date. Defendant thus tendered a check for the lesser amount of $8,439.21 as "final payment" and contends that plaintiff's negotiation of it constituted a settlement of the account, an accord and satisfaction which estops plaintiff from seeking additional payment.

Defendant moved for summary judgment against plaintiff, which was granted by the trial judge. Normally, the existence of an accord and satisfaction is a question for the jury, but, "if the only reasonable inference is its existence or nonexistence, accord and satisfaction is a question of law and may be adjudicated by summary judgment when the essential facts are made clear of record." Sharpe v. Nationwide Mut. Fire Ins. Co., 62 N.C.App. 564, 565, 302 S.E.2d 893, 894, cert. denied 309 N.C. 823, 310 S.E.2d 353 (1983).

When two parties disagree about an amount owed, and the debtor tenders a check to the creditor as full payment, the creditor's negotiation of the check constitutes an accord and satisfaction as a matter of law. Sharpe, 62 N.C.App. at 566, 302 S.E.2d at 894; Barber v. White, 46 N.C.App. 110, 112, 264 S.E.2d 385, 386 (1980); Brown v. Coastal Truckways, Inc., 44 N.C.App. 454, 455, 261 S.E.2d 266, 267 (1980); Barger v. Krimminger, 262 N.C. 596, 598, 138 S.E.2d 207, 210 (1964).

*36 The record in the present case indicates without doubt that prior to plaintiff's negotiation of the check tendered by defendant, the plaintiff and defendant disagreed on the amount defendant owed for the construction work. On 31 March 1981 plaintiff issued to defendant a bill for final payment in the amount of $15,939.21. On 6 July 1981 defendant sent plaintiff a check for $8,439.21. The accompanying voucher showed:

15,939.21 Final Payment (7,500.00) Less $50.00 per day for 150 ---------- days over $8,439.21 Balance Due

A letter also accompanied the check. It read:

Mr. Don C. Kennedy, P.E. Bass, Nixon & Kennedy, Inc. 7416 Chapel Hill Road, Raleigh, N.C. 27607 Dear Don: We are enclosing our check for $8,439.21 as final payment to J.F. Wilkerson Contracting Company. According to your June 17, 1981 letter Wilkerson is penalized for being 150 days late in completing the project as contracted. Therefore we have deducted $7,500.00, or 150 days at $50.00 per day. Please forward this check to Wilkerson and the extra copy of this letter enclosed for their records. Yours very truly, SELLERS MANUFACTURING COMPANY s/ BEN F. BULLA Ben F. Bulla, Treasurer CC: Mr. Ben E. Jordan, Jr., President J.F. Wilkerson Contracting Co. Enclosure 2

These documents indicate that plaintiff and defendant disagreed on the total amount owed, primarily because they disagreed as to whether or not plaintiff owed liquidated damages.

When plaintiff elected to accept defendant's check this represented its acceptance of the balance due as final payment. Plaintiff's attempt to alter the terms of the letter and voucher is unavailing. Plaintiff had "to accept it [the check] on the terms offered by defendant or not at all, and ... acceptance and negotiation of it constituted an accord and satisfaction despite [plaintiff's] attempt to characterize it otherwise." Sharpe, 62 N.C.App. at 567, 302 S.E.2d at 894.

An accord and satisfaction was established as a matter of law and the trial judge's grant of a summary judgment was proper.

Affirmed.

WELLS and EAGLES, JJ., concur.