In August 1979 plaintiff-appellant, Samuel Shipkovitz, hired defendant-appellee, North American Van Lines, to move his personal belongings from his home in Cleveland to his new residence in Arlington, Virginia.1 When the contents arrived in Virginia, appellant found that the furniture had been damaged (smashed), a carton containing gold pieces and a camera were missing, many of the labels on the cartons were missing or mislabeled, and anti-Semitic graffiti was attached to several boxes. Appellant contacted appellee's Cargo Claims Department which responded on October 26, 1979 with a check for $927 in partial settlement of appellant's claim. On January 9, 1980 appellee proffered a final payment of $297, which was rejected by appellant. After further discussion, appellee sent another check for $297 plus an additional sum of $177.85 "to complete the adjustment" of appellant's claim. Appellant cashed these checks but altered the language printed on back of the checks to reflect that it was only in partial settlement of his claims.
Appellant filed suit on May 27, 1981 requesting (1) $1,760 compensatory damages for the missing carton; (2) $2,775.50 compensatory plus $10,000 punitive damages for the alleged negligence of appellee and deliberate destruction of the evidence by "confusing" the labels on the cartons; (3) $15,000 compensatory plus $500,000 punitive damages for anger, embarrassment, insult, mental and emotional distress, anxiety and loss of sleep; and (4) $2,775.50 compensatory and $750,000 punitive damages for appellee's bad faith and outrageous conduct in the parties' relationship. Appellee filed a motion for summary judgment on December 29, 1982 asserting that appellant's acceptance of the final check served as an accord and satisfaction. Appellant responded with his own motion for "partial summary adjudication" charging that the partial settlement of February 1980 extended only to his cargo claim, exclusive of his claim for the missing carton and the alleged intentional tort.
On May 6, 1983 the court granted appellee's motion for summary judgment and dismissed the case. Appellant *Page 122 timely filed his notice of appeal and assigns the following error for review:
"The trial court erred when it granted summary judgment to defendant on the basis of an alleged release, where plaintiff's sworn statement and the course of dealing evidenced by the documents in the record create a genuine issue whether the parties intended that the release should extend in its effect to the matters complained of."
Appellee argues that appellant relies on an incorrect basis for attacking the trial court's decision. Appellant maintains that a full release was not proven, while appellee's motion relied solely on the theory of accord and satisfaction. Thus, the trial court, in granting appellee's motion, must have been convinced that accord and satisfaction applied. There is no basis for appellant's assertion that the court decided the issues to be governed as a "release." However, appellant's general proposition that summary judgment was improperly granted, resulting in dismissal of the entire case, including the intentional tort claim, is well-taken.
Based on our review of the evidentiary materials submitted to the trial court, a genuine issue of material fact remained,i.e., whether the accord and satisfaction related solely to the damages arising from appellant's contract with appellee or whether the parties intended to settle the intentional tort claim as well. Appellee's letter of January 9, 1980 indicated that the $297 check was for full and final settlement of appellant's claim for damage and loss. Then, on February 6, 1980, appellee requested substantiation of the value of the items in the missing carton. The final correspondence of February 14, 1980 indicated that the $177.85 check was to complete the adjustment of appellant's claim. Thus, there was absolutely no evidence to warrant the court's apparent conclusion that the accord and satisfaction reached in regard to the involved negotiations over the property loss and damage was intended by both parties to include the separate claim for intentional tort spelled out in the complaint.
An accord and satisfaction is the result of an agreement of the parties and must be consummated by a meeting of the minds of the parties. Warner Elevator Mfg. Co. v. Higbee (1935), 53 Ohio App. 546,548 [7 Ohio Op. 355]. Since there was no evidence connecting the intentional tort claim with the accord and satisfaction, an issue of fact remained, rendering summary judgment inappropriate.
Accordingly, judgment is reversed and the cause is remanded for trial.
Judgment reversed and cause remanded.
PATTON, J., concurs.
NAHRA, J., dissents.
1 The cargo was packed and moved by defendant's agent, Cal-Lee Movers, but plaintiff was unable to achieve service of process in this action on the agent as it apparently went out-of-business.