This appeal presents the questions of whether the trial court’s action was proper in awarding summary judgment based upon defendant’s defenses of accord and satisfaction and the one-year statute of limitations set forth in N.C. Gen. Stat. § 1-54(2). We now hold that with respect to both of these defenses, summary judgment was inappropriately granted.
I.
Accord and Satisfaction
This aspect of the dispute between the parties involves the scope of an agreement or accord made between the parties in 1977. Defendant, Coggin Pontiac, Inc., argues that plaintiff, Edward Holley, both orally and in writing proposed a full and complete resolution of whatever claims he might have had against defendant. Plaintiff Holley, on the other hand, contends that the agreements reached among himself, defendant and Volvo Corporation of America, (hereinafter “Volvo Corporation”) only pertained to resolution of particular mechanical problems. The trial judge, in granting summary judgment, found the accord to be a complete bar to this action.
Summary judgment under N.C.R. Civ. P. 56 serves the ends of judicial economy but the remedy is a drastic one,
Koontz v. City of Winston-Salem,
The crux of our holding on the question of accord and satisfaction is that, at the very least, we find a genuine issue of material fact as to whether the scope of the accord, between plaintiff on one side and defendant and Volvo Corporation on the other, went so far as to supplant the tort claims of fraudulent misrepresentation and unfair trade practices which plaintiff brings in this action. While parties may certainly reach an accord as to matters of tort as well as contract, if the accord at issue does not reach the torts of fraud and misrepresentation, the accord cannot be a defense to this action. On the record before us there is little, if any, indication that a claim against Coggin Pontiac for fraudulent misrepresentations was ever considered by either party to be an element of the accord.
It is not for this Court to usurp the jury as the trier of fact on the question of the scope of the accord among Coggin Pontiac, Volvo Corporation and the Holleys. However, there is sufficient evidence favorable to the plaintiff to send this case to the jury. Each item of correspondence from Holley to Coggin Pontiac and Volvo Corporation specifically requested reimbursement for sums expended to remedy particular mechanical problems, as opposed to compensating plaintiff for his loss of market value, his loss of use of his vehicle, his loss of time and aggravation in continually pursuing repairs, and, most important, his right to recover in tort for fraud in the inducement of sale. For example, the letter of 17 January 1977 from plaintiff to Volvo, demands $334.06 in reimbursement for repairs to the flywheel and starter as well as for the cost of renting a car while these repairs were being made. Similarly, the second letter from plaintiff to Volvo Corporation dated 1 May 1977, requested $361.49 in reimbursement for the aforementioned flywheel repairs ($280.06) and an additional sum for replacing the motor mounts ($81.43). The third letter of 11 July 1977, in which Holley asked to bring “this matter to a prompt conclusion” so that the parties could “be rid of each other once and for all,” specifically referred to the “long ordeal of waiting, discussing, [and] pleading” which occurred over the six months that “passed since the problem of the flywheel just after *233 Christmas, 1976.” Finally, Holley’s letter of 15 July 1977 to Cog-gin Pontiac explained that Coggin Pontiac still owed Holley $118.90 for towing service and repairs to the flywheel for which Holley had not been fully reimbursed. Nowhere in these letters is there mentioned any prospect of a suit for fraud or unfair trade practice.
The timing of the discovery of the alleged fraud also bears heavily upon the factual issue involving the scope of the accord. It is true that Mrs. Holley stated in her affidavit, “I began to suspect at a very early date that we had not been told the accurate mechanical condition of the vehicle at the time of its purchase.” Nonetheless, the Holleys contend that the actual misrepresentations were not revealed until July, 1977, after a long tedious process of repairs and delays in reimbursement had transpired and the frustrated Holleys had begun to talk with Robert Lawrence at Yates Motor Company about trading in their Volvo. In contrast, the negotiations and the correspondence concerning the flywheel, motor mounts, and starter problems began almost seven months before the alleged bad faith of Coggin Pontiac’s salesmen was discovered by Lawrence. Indeed, throughout the nineteen-month period in which the Holleys had owned the Volvo, they were in a situation similar to that of a man who drops one grain of sand upon another and then must determine when a pile has been created; only at the culmination of the long period of incremental disappointments did the Holleys have good reason to believe they had been defrauded. We therefore find a genuine issue of material fact as to whether the Holleys even knew they had been defrauded when the accord was made, must less whether a potential suit for fraud and unfair trade practice was contemplated in the accord.
Defendant also contends that plaintiff cashed a check for $113.90 in August, 1977, subsequent to the time in July when plaintiff learned of the alleged misrepresentations, and therefore complete satisfaction, by way of full performance of the settlement accord, was achieved. We do not agree.
It is well settled that an “accord” is an agreement in which one of the parties undertakes a performance in satisfaction of a liquidated or disputed claim arising from either tort of contract, and the other party agrees to accept the performance even
*234
though the performance is otherwise than that to which the accepting party considered himself entitled. “Satisfaction,” on the other hand, is the completion or execution of the agreed performance.
Allgood v. Wilmington Savings & Trust Company,
Even if an accord had been reached as to the totality of the transaction, the accord would be voidable at the behest of the plaintiff if, when the accord was purportedly made, the fact of the initial misrepresentation were not known to the Holleys. The taint of the fraud in the inducement of the sale carries over to the accord which arose out of the sale, and for this same reason the accord lacks the element of mutuality which is necessary to enforce any contract. See 1 Am. Jur. 2d Accord and Satisfaction § 24 (1962). We therefore hold that the award of summary judgment based upon the defense of accord and satisfaction was improper.
II.
Statute of Limitations
The second issue presented concerns the appropriate statute of limitations for the North Carolina Unfair Trade Practices Statute, N.C. Gen. Stat. 75-1.1 (hereinafter “G.S.”) in the decade between 1969 and 1979. This question is one of first impression; its answer does not appear in black and white, and its resolution depends on a sensitive analysis of the statutory scheme by which North Carolina regulates unfair trade practices. We now hold that *235 the statute of limitations for G.S. 75-1.1 during the period between 12 June 1969, the date of enactment of G.S. 75-1.1 (1969 N.C. Sess. Laws, c. 833, sec. 3), and 21 March 1979, the date of amendment by the North Carolina General Assembly (1979 N.C. Adv. Leg. Serv., § 169, sec. 2, to be codified as G.S. § 75-16.2), is three years.
In 1969 the North Carolina Legislature adopted the language of G.S. 75-l.Ka) from Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1) (1969), and incorporated it within Chapter 75, the North Carolina antitrust statute. The prohibitions and purposes of the unfair and deceptive trade practice statute are herein provided in relevant part:
“§ 75-1.1. Methods of competition, acts and practices regulated; legislative policy. —(a) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.
(b) The purpose of this section is to declare, and to provide civil legal means to maintain, ethical standards of dealings between persons engaged in business, and between persons engaged in business and the consuming public within this State, to the end that good faith and fair dealings between buyers and sellers at all levels of commerce be had in this State.”
G.S. 75-l.l(a), (b) (1969). North Carolina, however, did not follow the enforcement scheme in the Federal Trade Commission Act. Instead of creating a new agency with the sole authority to enforce the act, such as the Federal Trade Commission, the General Assembly placed partial enforcement authority in the Attorney General and amended the treble damages provision of the North Carolina antitrust statute to encourage enforcement of the act by private individuals injured by unfair trade practices.
State ex rel. Edmisten v. J. C. Penney Co.,
The defendant now correctly cites:
Williams v. Gibson,
“§ 1-54. One year. — Within one year an action or proceeding — . . . .
(2) Upon a statute, for a penalty or forfeiture, where the action is given to the State alone, or in whole or in part to the party aggrieved, or to a common informer, except where the statute imposing it prescribes a different limitation.”
The defendant’s argument, however, does not convince us that the answer is so simple.
First, it does not necessarily follow that because other multiple damages statutes have been found to involve penalties, all multiple damages provisions must therefore be penalties. Indeed, to adopt this reasoning, without more, would be to wander aimlessly through the annals of stare decisis. Quite simply, it may be inappropriate to select limitations by analogy from one subject to another, 53 C.J.S. Limitations of Actions § 33 (1948), especially if to do so would run against the policy and intent of the Legislature enacting the act in question, or if to do so would disregard the nature of the right involved.
*237 We are hesitant to make such an analogy in this case, for in none of the Dozier, Waters, Williams, or Smoke Mount Industries cases, supra, cited by defendant, did the court address any question of application of a statute of limitations or was there in existence a complex scheme of public and private enforcement at the state level that resembles the North Carolina unfair trade practice statute. These distinctions require further elaboration.
A statutory provision may have punitive elements and still not constitute a “penalty.” As has been explained by our Supreme Court, the distinguishing characteristic of a penal statute is that it is “ ‘prosecuted for the
sole
purpose of punishment, and to deter others from acting in a like manner.’ ” (Emphasis supplied).
Edmisten v. J. C. Penney, Inc.,
Moreover, in 1977, the Legislature specifically created a “civil penalty” for violations of G.S. 75-1.1:
“§ 75-15.2. Civil Penalty. — In any suit instituted by the Attorney General, in which the defendant is found to have violated G.S. 75-1.1 and the acts or practices which constituted the violation were, when committed, specifically prohibited by a court order or knowingly violative of a statute, the court may, in its discretion, impose a civil penalty against *238 the defendant five thousand dollars ($5,000) for each violation. In determining the amount of the civil penalty, the court shall consider all relevant circumstances, including, but not limited to, the extent of the harm caused by the conduct constituting a violation, the nature and persistence of such conduct, the length of time over which the conduct occurred, the assets, liabilities, and net worth of the person, whether corporate or individual, and any corrective action taken by the defendant. Any penalty so assessed shall be paid to the General Fund of the State of North Carolina.” (Emphasis supplied.)
1977 N.C. Sess. Laws, c. 747, sec. 3. It would not be proper for this Court to strain to infer that the General Assembly meant the treble damages provision of Chapter 75 to be a penalty where, in the preceding statutory section, the General Assembly has expressly created a “penalty” denominated as such and reserved the authority to enforce the “penalty” to the State’s chief law enforcement officer. The language of G.S. 75-15.2 is sufficiently particular for us to conclude that had the General Assembly intended its sister provision, G.S. 75-16, also to be a “penalty,” the General Assembly would have expressly provided for a second “penalty.”
All of the above is consistent with the statement of Mr. Justice Gray, in
Huntington v. Attrill, supra,
that “[t]he test whether a law is penal, in the strict and primary sense, is whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual . . . .”
In addition, in State ex rel. Edmisten v. J. C. Penney Co., supra, our Supreme Court expressly rejected the argument that the treble damages provision, G.S. 75-16, is penal:
“The State and the defendant both call our attention to various rules of construction that they deem controlling. Defendant contends the statute is penal in nature and, thus, must be strictly construed. Chadwick v. Salter,254 N.C. 389 , *239119 S.E. 2d 158 (1961). The State, on the other hand, insists the statute is remedial and must, therefore, be broadly construed. Morris v. Staton,44 N.C. 464 (1853). We find neither of these views persuasive.” (Emphasis supplied.)292 N.C. at 319 ,233 S.E. 2d at 900 .
Earlier this year the North Carolina General Assembly addressed the question before us by providing that “[a]ny civil action brought under [Chapter 75] to enforce the provisions thereof shall be barred unless commenced within four years after the cause of action accrues.” 1979 N.C. Adv. Legis. Serv., c. 169, sec. 1, to be codified as G.S. 75-16.2. However, during the legislative process language in section 2 of House Bill 238, later enacted and ratified as the aforementioned Section of Chapter 75, was changed from the following:
“This act is effective upon ratification and shall apply to all civil actions pending and claims accrued as of that date.”
to the following:
“This act is effective upon ratification but shall not apply to any pending civil action.”
Thus we agree with the defendant that the new enactment does not apply to the case at bar.
Defendant, however, argues that since the transmittal memorandum 1 from the Attorney General’s Office cited this particular case as a reason for the bill, and since the Legislature decided not to make the legislation effective as to pending litigation, the one-year statute of limitations embodied in G.S. 1-54(2) is therefore applicable. We disagree. The question of whether a one-year or a three-year statute should apply to G.S. 75-16 prior to the enactment of G.S. 75-16.2 has never been addressed by the General Assembly or the North Carolina Appellate Courts. By changing the law for future actions under G.S. 75-16 the Legislature did not determine, as we must do now, what the prior law was. We think that by acting prospectively the Legislature did not thereby ratify the application of the one-year rule to G.S. 75-16 prior to the date of the amendment, but rather merely made *240 it clear that the one-year rule was inappropriate for the treble damages provisions. The very same transmittal memorandum which defendant presents to this Court emphasizes this point:
. . In addition, it appears that the provisions in § 75-16 for treble damages and in § 75-16.1 for attorney’s fees were intended by the General Assembly to serve as an incentive to injured parties to pursue their rights under that chapter. The nature of the violations of Chapter 75 is such that a one year statute of limitations makes it next to impossible to effectuate the policy behind Chapter 75. . . .”
This memorandum further noted, and correctly so, that G.S. 1-52(2), hereinafter quoted, was a possible alternative to the one-year statute:
“§ 1-52. Three years. — Within three years an action —
* * * *
(2) Upon a liability created by statute, either state or federal, unless some other time is mentioned in the statute creating it.”
1975 Sess. Laws, c. 252, sec. 2. Consequently, we do not glean from the transmittal memorandum, by negative implication, that by enacting the four-year limitations period in G.S. 75-16.2 the General Assembly meant this case to be bound by the one-year rule. Even though the four-year limitations amendment does not apply to the instant case, the underlying policy reasons do, and given the choice between the one-year rule in G.S. 1-54(2) and the three-year rule in G.S. 1-52(2), we find the latter more appropriate. We do not find it inconsistent herewith that the General Assembly has subsequently extended this period to four years in conformity with limitations for treble damages suits under federal antitrust legislation. 15 U.S.C. § 15b (1979). Cf. 15 U.S.C. § 57d (1979) (the three-year limitations period for unfair trade practice actions brought by the Federal Trade Commission).
Our holding today is in conformity with the rules of construction that, “ ‘a statute of limitations should not be applied to cases not clearly within its provisions,’ ”
Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach,
There is still another more substantive reason why the three-year period is more appropriate. It has long been a general rule that in determining the applicable statute of limitations, the focus should be upon the nature of the right which has been injured and not the remedy therefor.
New Amsterdam Casualty Co. v. Waller,
Similarly, “ ‘[i]t is well settled that when there is doubt as to the time when the limitation commences to run, that construction should be given which is most favorable to the enforcement of the common-law rights of the citizen.’ ”
Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach,
In this case the gravamen of the alleged offense is fraud in the inducement of sale of an automobile effected by misrepresentations of a salesman.
See, e.g., Hardy v. Toler,
We must now ask: if the right and not the remedy is to determine the appropriate statute of limitations, when, if ever, is
*242
the one-year statute of limitations for penalties to apply? The answer is that the one-year rule applies when a penalty is provided “upon a . . . statute,” G.S. 1-54(2), and since penal statutes are to be construed strictly,
Chadwick v. Salter,
To say that the legislative intent to create a penalty must be spelled out is also consistent with the prevailing rule in North Carolina that a penalty must be for a sum certain.
State v. Maultsby,
*243
We turn now to the federal cases which have held that the one-year statute of limitations found in G.S. 1-54(2) applies to treble damages actions under G.S. 75-1.1.
Harris v. Atlantic-Richfield Company,
The
Harris, C.F. Industries
and
Thomas
cases,
supra,
all rely upon the decision of the Fourth Circuit in
North Carolina Theatres, Inc. v. Thompson,
In addition, the North Carolina Theatres opinion was written nine years prior to the enactment of G.S. 75-1.1 and does not take into account the unique North Carolina statutory scheme of enforcement, the existence of the “civil penalty” expressly provided in the statute, the nature of the particular rights invaded, and the spirit of the antifraud provisions of the Act. The application of the one-year rule in North Carolina Theatres was unnecessarily grudging. We find that, in contrast to the one-year rule, a three-year statute of limitations for G.S. 75-1.1 and 75-16 provides a reasonable period of time in which to ferret out and investigate unfair trade practices, especially where, as in the instant case, elements of deceit or misrepresentations by silence may have been involved.
Moreover, the action in North Carolina Theatres was filed in 1952. In 1955 Congress amended the Clayton Act to provide a *244 four-year statute of limitations for private antitrust actions and thereby rendered the decision in North Carolina Theatres obsolete. 15 U.S.C. § 15b, 69 Stat. 283 (1955), amended in part 90 Stat. 1396 (1976).
Similarly, prior to the enactment of the federal four-year statutory limitations period, the United States Supreme Court in Chattanooga Foundry, supra, rejected the argument that the treble damages provision of the federal antitrust laws was a penalty:
“The limitation of five years in Rev. Stat. § 1047, U.S. Comp. Stat. 1901, p. 727, to any ‘suit or prosecution for any penalty or forfeiture, pecuniary or otherwise, accruing under the laws of the United States,’ does not apply. The construction of the phrase ‘suit for a penalty,’ and the reasons for that construction, have been stated so fully by this court that it is not necessary to repeat them. . . .”
The order of the trial court granting summary judgment to defendant is reversed and this case is remanded for further proceedings consistent herewith.
*245 Reversed and Remanded.
Notes
. Memorandum from Leigh Emerson Koman, Assistant Attorney General, to Representative William H. McMillan, concerning H. B. 238, Statute of Limitations Under Chapter 75, February 13, 1979. This memorandum was not in the record but was submitted by defendant as an addendum to his brief on appeal.