Edward L. MOORE and Edward L. Moore, III partners D/B under the firm name and style of Moore's Seafood Co.
v.
Dewey Ray FRAZIER.
No. 823SC772.
Court of Appeals of North Carolina.
August 2, 1983.*563 Ward & Smith by Kenneth R. Wooten, New Bern, for plaintiffs-appellants.
Dunn & Dunn by Raymond E. Dunn, Jr., New Bern, for defendant-appellee.
PHILLIPS, Judge.
The legal principles that govern this appeal are few and explicit. In considering a defendant's motion for a directed verdict at the close of plaintiff's evidence, the evidence admitted at trial, whether competent or not, must be accepted as true and viewed in the light most favorable to the plaintiff. Jenkins v. Starrett Corp., 13 N.C.App. 437, 186 S.E.2d 198 (1972). Simply put, an accord is an agreement to settle a disputed claim for less or something other than what one party claims is due from the other; a satisfaction is the execution or *564 performance of the agreement so made. 1 C.J.S. Accord and Satisfaction § 1 (1936); Walker v. Burt, 182 N.C. 325, 109 S.E. 43 (1921). Establishing an accord and satisfaction affirmative defense as a matter of law requires evidence that permits no reasonable inference to the contrary and that shows the "unequivocal" intent of one party to make and the other party to accept a lesser payment in satisfaction and discharge of a larger claim. Allgood v. The Wilmington Savings & Trust Co., 242 N.C. 506, 515, 88 S.E.2d 825, 831 (1955).
Applying these principles to the record below, it is manifest that the evidence fails to establish an unequivocal intent by either of the parties, much less both, to settle plaintiffs' $25,000 plus claim against the defendant for Fireman's Fund's $10,000 draft.
First of all, the draft itself, the primary basis in the record for determining the state of mind of either the defendant or Fireman's Fund when it was tendered, is incomplete and ambiguous on its face. The meaning of the words "For all claims" cannot be ascertained from the instrument itself, which contains no explanatory or qualifying information with respect thereto. Obviously, the words could mean all of plaintiffs' and New Hampshire's claims against Fireman's Fund generally, all their claims against Fireman's Fund under the policy referred to, or all their claims against the insured defendant, Dewey Ray Frazier. And, to say the least, this uncertainty as to what the words meant to the parties at the time is not diminished by the fact that several months went by after the suit was filed before defendant apparently decided that the words meant all of plaintiffs' claims against defendant and amended his answer to plead accord and satisfaction. On the other hand, the evidence abundantly and clearly shows that plaintiffs had no intention whatever of compromising their claim against the defendant for Fireman's Fund's $10,000 draft, and, for that matter, had not even considered doing so, since compromising plaintiffs' claim for any lesser amount had been neither proposed nor discussed. Their contention that the draft only settled Fireman's Fund's policy limits obligation was a question of fact for the jury, rather than one of law for the court.
What complexion the evidence will have when Fireman's Fund's version of the events that occurred is added remains to be seen. But since the writing is ambiguous and the intent of the parties cannot be ascertained from its contents, relevant parol evidence will be both appropriate and necessary. Root v. Allstate Insurance Co., 272 N.C. 580, 158 S.E.2d 829 (1968). During the first trial some such evidence was properly admitted, but other such evidence, equally relevant, was not, including proof that in settling the personal injury claim of plaintiffs' driver against the defendant because of the same accident, Fireman's Fund required him to sign a comprehensive, notarized form releasing all and sundry persons and organizations for all claims, injuries and damages, past, present, and prospective.
New trial.
HEDRICK and WELLS, JJ., concur.