Plaintiff sued for a sales commission of $10,750 claimed to be owed him over and above $4,250 previously paid by defendant. Defеndant pleaded an affirmative defense of accord and satisfaction by the payment of the $4,250, this being the cоmmission defendant considered to be due. The trial court withdrew this defense from the jury. The jury returned a verdict for the $10,750 claimed by plaintiff, judgment was entered, and defendant appeals.
The case presents the single question whether a creditor’s acceptance of a payment tendered in full satisfaction of a disputed or unliquidated claim can constitute an accord and satisfaction when the amount tendered is no greater than the debtor admits he owеs. We hold that it can.
The dispute arose from a transaction in which defendant’s president, Richard Blickle, orally agrеed that defendant would pay plaintiff a commission if plaintiff obtained a buyer for defendant’s dredge. According to dеfendant’s version of the negotiations, the commission was to be either five per cent of the sale price, if dеfendant bore certain risks and expenses of sale, or any sum in excess of $65,000 net to defendant if plaintiff arranged а cash sale. Plaintiff denied that the second alternative was conditional on his finding a cash buyer. He obtained a рurchaser who bought the dredge for $85,000 on an installment contract and claimed a commission of $20,000 less expenses inсident to the sale.
Defendant paid plaintiff $4,250, or five per cent of the sale price, by two checks for $2,125. Plaintiff cashed these checks. Defendant presented evidence that each check, when delivered to plaintiff, was accompanied by a voucher stating that the check represented one-half of the total commission, the second voucher describing the second check as the "final” half of the total of $4,250. Defendant denied hаving seen either voucher. The evidence sufficed to
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make a jury issue whether there was a bona fide dispute about the amount of commission due, at the time the checks were given to plaintiff, and also whether the plaintiff received the vouchers and cashed the second check with notice that it was tendered in full satisfaction of his claim. Aсcordingly, the defense should have gone to the jury unless it falls outside the general rule of accord and satisfactiоn recognized in
Schumacher v. Moffitt,
The premise of an accord and satisfaction is contractual.
See, e.g., Harding v. Bell,
The creditor who confronts the unpalatable choice between pressing a disputed clаim or abandoning it in return for present payment of an undisputed amount may not be helpless in the face of what onе text calls "an exquisite form of commercial torture.” White and Summers, Uniform Commercial Code (1972) 452, §§13-21. In a transaction to whiсh ORS 71.2070 applies, he may well have the option under ORS 71.2070 to collect the tendered "final” payment "under protest,” or "without prejudice,” or with some other explicit reservation of his rights to the remaining claim
2
—at least unless the debtor has, in turn, expressly demanded a waiver of that option.
See id.
at 453-454 and note 184; Calamari and Perillo, Contracts (1970) §§65, 94.
See also Scholl v. Tallman,
In the present case, there is disputed evidence whether this is what occurred. The jury found, in *430 response to a special interrogatory, that the initial agreement was as claimed by plaintiff, but they were prevented from considering defendant’s contention that plaintiff knowingly accepted defendant’s $4,250 as a full settlement of his commission. Perhaps defendant could not convince the jury of that, but he wаs entitled to try. Accordingly, the case must be remanded for a new trial.
Reversed and remanded for a new trial.
Notes
ARV v. AMFAC Merchandising Corp.,
ORS 71.2070:
A party who with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as "without prejudice,” "under protest” or the like are sufficient.