Civil action to recover damages for an alleged breach of contract and loss of commissions growing out of the purchase and sale of certain peanuts during the year 1920. Plaintiff contends that by agreement he purchased said peanuts as agent for defendant. There was ample evidence tending to show the existence of a contract between the parties and a breach thereof, but defendant pleads in bar a settlement by way of accord and satisfaction.
Plaintiff received from the defendant a statement of his account accompanied by a check to cover the balance as shown upon said statement. This was not posted or mailed, but sent by one L. M. Blanchard, plaintiff's partner in the guano business.
Touching the receipt and acceptance of said check the plaintiff testified as follows: "I did not accept this check in full settlement of the accounts due me. The statement shown me is the one I received along with the check. (Statement was offered in evidence and bears the notation: `We enclose check to cover.') Mr. L. M. Blanchard handed it to me and said: `Here is what they sent you. I don't know what it is; take it.' I did not know they claimed it to be in full at that time. There is nothing on the face of the check showing or saying that it is in full." *Page 22
"Q. You know that they claimed it was in full of the (21) balance that they claimed was due you? A. That is what they claimed.
"Q. You knew that they claimed this check was to cover all that they owed you up to that date? A. Yes, that is what they claimed; that was all they claimed to owe me.
"Court: What do you mean by saying they claimed? A. No, I didn't know that was all they claimed then.
"Court: You didn't admit that the check was all, but you knew that was what they claimed it was? A. Yes, but I didn't think that was all they were going to pay me. I was satisfied they would pay me the remainder of it. I knew it was not my fees.
"Court: Did you know that they claimed that was in full at that time? No, I did not.
"Court: You knew that was what they claimed when L. M. Blanchard brought it to you? A. He handed it to me and said: `Here is what they sent you.' I looked it over, and I think I remarked to him: `This is not all they owe me.' I thought maybe they would send me some more.
"Court: You knew at the time that they claimed that was all that was due you and you claimed it was not? A. Yes, sir."
At the close of plaintiff's evidence defendant moved for judgment as of nonsuit, which motion was allowed, and plaintiff appealed. Considering the evidence in its most favorable light for the plaintiff, the accepted position on a motion to nonsuit, we think the question of settlement by way of accord and satisfaction sufficiently ambiguous to require the aid and verdict of a jury.
Under a uniform construction of our statute, C.S. 895, as announced in a long line of decisions, it is held with us that where two parties are in dispute as to the correct amount of an account, and one sends the other a check, or makes a payment, clearly purporting to be in full settlement of the claim, and the other knowingly accepts it upon such condition, this will amount to a full and complete discharge of the debt. Mercer v. LumberCo., 173 N.C. 49; Aydlett v. Brown, 153 N.C. 334; Kerr v. Sanders,122 N.C. 635, and numerous cases of like import. The law as it prevails in this jurisdiction is succinctly stated by Mr. Justice Hoke in Rosser v.Bynum, 168 N.C. 340, as follows:
"It is well recognized that when, in case of a disputed account *Page 23 between parties, a check is given and received clearly purporting to be in full or when such a check is given and from the facts and attendant circumstances it clearly appears that it is to be received in full of all indebtedness of a given character or all indebtedness to date, the courts will allow to such a payment the (22) effect contended for," citing a number of authorities, and this has been approved in the recent case of Supply Co. v. Watt,181 N.C. 432.
The case of Ore Co. v. Powers, 130 N.C. 152, chiefly relied on by defendant, is not at variance with the rule above stated, nor is it more favorable to defendant's contention, for, as appears from the last paragraph of the opinion in that case, the check in question was sent in full settlement of account, and this condition was annexed to its acceptance. An examination of the original papers discloses this fact more clearly than is shown by the report as published.
But it is equally well established that unless the intention of the parties, as gathered from the facts in evidence, is so clearly apparent as to admit of no doubtful inference or uncertain conclusion, among men of fair, disinterested and unbiased minds, the issue must be referred to a jury. This position is well stated in Mercer v. Lumber Co., supra, as follows:
"It is a well recognized principle here and elsewhere that when a dispute exists between two parties as to the amount of an account, and one sends another a check or makes a payment clearly purporting to be in full settlement of the claim, and the other knowingly accepts it, this will amount to an adjustment, and further action thereon is precluded. It is a question, however, of the intent of the parties, as expressed in their acts and statements at the time, and unless, on the facts in evidence, this intent is so clear that there could be no disagreement about it among men of fair minds, the issue must be decided by the jury."
In the case at bar, we do not think it appears unequivocally that the check was sent on condition that its acceptance should amount to a settlement in full, or as a complete discharge of the debt. This may be a permissible view to take of the evidence, but not necessarily the only one. The sending of the check to cover what the defendant claimed was the balance due on the account does not ipso facto show conclusively that an accord and satisfaction was the condition annexed to its acceptance. The ultimate fact can only be determined by a jury under proper instructions from the court.
The contention that the plaintiff's testimony is self-contradictory and that he should be held to his admissions, or bound by the hurtful parts thereof, cannot avail the defendant on the present *Page 24 record; for, conceding without deciding that such a conflict exists, still, under our decisions, this does not perforce destroy his favorable testimony, but only affects its credibility, which the jury alone may pass upon. Loggins v. Utilities Co., 181 N.C. 221; Christman v. Hilliard,167 N.C. 4, and Shell v. Roseman, 155 N.C. 90.
The judgment of nonsuit will be set aside and the cause (23) remanded for trial upon appropriate issues.
Reversed.