To constitute an accord and satisfaction in law, dependent upon the offer of the payment of money, it is necessary that the money should be offered in full satisfaction of the demand or claim of the creditor, and be accompanied by such acts or declarations as amount to a condition that, if the money is accepted, it is to be in full satisfaction, and be of such a character as that the creditor is bound to so understand such offer. The mere sending of a statement of account showing a balance due, with a check for such balance, is not an accord; and if the check is cashed by the creditor it is not a satisfaction of the debt. Harrison v. Henderson, Adm'r, 67 Kan. 194, 72 P. 875, 62 L.R.A. 760, 100 Am.St. Rep. 386; M.A. Phelps Lumber Co. v. Bradford-Kennedy Co.,96 Wn. 503, 165 P. 376; Childs v. St. Louis Basket Box Co. (St. Louis Ct. of App.Mo.) 271 S.W. 859; Gulfport Wholesale Lumber Co. v. Boeckeler Lumber Co. (St.L.C. of App.Mo.) 287 S.W. 799; Grapes v. Rocque, 97 Vt. 531, 124 A. 596; Three Rivers Growers' Ass'n v. Pacific Fruit Produce Co., 159 Wn. 572,294 P. 233; Bahrenburg *Page 340 et al. v. Conrad, etc., Co., 128 Mo. App. 526,107 S.W. 440; Pitts v. National Independent Fisheries Co.,71 Colo. 316, 206 P. 571, 34 A.L.R. 1033, and annotation beginning at page 1035; and annotations 75 A.L.R. 919.
If there was an accord and satisfaction, it resulted from the subsequent interview mentioned in the majority opinion, in which appellee first demanded his wheat, and was informed it had been shipped to Chicago. The appellant stated, "That is all I can payfor it," which was as much as to say, "The check which I have tendered is all I can pay for the wheat." But that is far from saying: "If you accept this check it will be in full payment of all that I owe you on the transaction." The mere statement that, "It is all I can pay," might mean a number of things. It might mean that he was not financially able to pay more, or that he would not pay more; but that is not sufficient. The acts and words of the parties must have amounted to a contract resulting from appellant's tender of the check in full payment of the amount he owed on the wheat transaction; and appellee, knowing this was the condition of the tender, accepted the check with such condition attached.
It is stated in the majority opinion: "Why did appellee momentarily refuse to accept the check? Unquestionably because of the condition which now, if not before, he appreciated as accompanying its acceptance." I can see nothing in the evidence quoted in the majority opinion that authorizes any such conclusion. It was not accepted originally because appellee did not want to sell the wheat and he made that plain to appellant.
The majority concluded that the sending of the check, with the statement of account showing that it was intended as in full payment of the account, would not have been an accord and satisfaction if the check had been accepted. I am unable to understand how a different conclusion can be reached by anything that was said in the conversation between the appellee and the representative of the appellant.
There is not one circumstance to show that either party had in mind an accord and satisfaction, or that either knew their effect. The appellant never at any time, either by words or acts, made it a condition that if appellee accepted the check it would be in full settlement of the debt. This court by the majority opinion supplies a contract for the parties which they never made themselves, or, so far as the facts show, ever thought of.
Unliquidated debts cannot be settled by the delivery and acceptance of a less amount than due, if the delivery is accompanied only by a statement that "this is all that I can pay." That is not an accord and satisfaction.
The judgment of the district court should be affirmed. *Page 341