Mobil Oil Corp. v. Prive

406 A.2d 400 (1979)

MOBIL OIL CORPORATION v. Norman W. PRIVE.

No. 297-78.

Supreme Court of Vermont.

September 10, 1979.

Monte & Monte, Barre, for plaintiff.

Norman W. Prive, pro se.

Before BARNEY, C. J., and DALEY, LARROW and HILL, JJ., and SMITH, J. (Retired), Specially Assigned.

PER CURIAM.

In a collection action, the trial court rendered judgment for the defendant with respect to an indebtedness, undisputed as to liability or amount. He had sent, and plaintiff had cashed, a check for a lesser amount with a notation of payment of account in full. Curran v. Bray Wood Heel Co., 116 Vt. 21, 68 A.2d 712 (1949), was relied upon as supporting this result.

Curran deals with an obligation disputed as to amount. Id. at 25, 68 A.2d at 715. The rule applicable to the facts found is stated in Crosby's Admrs. v. Naatz, 98 Vt. 226, 228-29, 126 A. 547, 548 (1924):

The payment of an amount less than that for which the debtor is liable does not *401 constitute a valid accord and satisfaction, unless there was a bona fide dispute or controversy as to the debtor's liability, or as to the amount due from him, or unless the damages are unliquidated. The requisite as a ground for compromise is a claim urged in good faith and with color of right. (Citations omitted.)

Accord, In re Estate of Boynton, 121 Vt. 98, 109, 148 A.2d 115, 122 (1959).

Judgment reversed, and cause remanded for entry of judgment for plaintiff for $1,100.58 with interest and costs in each court.