(dissenting)
I am of the opinion that the judgment of the common pleas court should be affirmed and therefore I regret that I must dissent from the majority opinion and judgment.
My principal point of disagreement with the majority is because of the assumption that only a question of law is-presented by this record in relation to the defense of accord and satisfaction, whereas I am firmly of the opinion that only an issue of fact is presented.
The plaintiff appellee filed his petition for money with request for ancillary relief of accounting to determine the exact amount due from his employer, the defendant appellant, under an incentive bonus plan. The defendant by way of answer set up the defense of accord and satisfaction, in addition to other defenses, which issue was traversed by denial ,in the reply.
In the present case I think it is important to remember that’ a period of over six months elapsed between the time the check in question was delivered and the time it was cashed; that in the meantime extended correspondence was had between the parties and numerous conferences and discussions took place, culminating finally in a conference which took place at the Hollenden Hotel in Cleveland at which time, according to the testimony of the plaintiff, vice-president Needham stated to the plaintiff that it didn’t make any difference that the legend “payment in full of all compensation”' was on the check and that he could go ahead and cash it and that if any money was due him “he would get a fair deal on it.” (Record, pages 144-145.)
*302In view of all the surrounding facts and circumstances and particularly this testimony, it became a question of fact to be determined by the trial judge as to whether the defense of accord and satisfaction had been sustained by the requisite degree of proof. The court determined this issue in favor of the plaintiff. Thus, an issue is squarely raised on a, question of fact and the judgment should not be reversed unless it is, found that the same is clearly and manifestly against the weight of the evidence. The state of this record is such that in my opinion this reviewing court should not reverse the judgment on that ground.
The authorities in Ohio are in agreement on the proposition that the defense of accord and satisfaction must be specially pleaded and is then one of fact to be determined by the trier of the facts, either court or jury, the burden of proof thereof being upon the pleader.
1 O. Jur. 166-167, Sec. 12:
“The existence of accord and satisfaction is a question of fact and the burden of proof is on the defendant who pleads accord and satisfaction to sustain such plea.”
Citing J. P. Burton Coal Company v. Gorman Coal Co. 22 Oh Ap 383, 15 N. E. 863. This case was decided by this court of appeals on Mar. 15, 1926, and a motion to certify was overruled by the supreme court on May 26, 1926.
It was there held that accord and satisfaction is a question of fact for court or jury, and that a reviewing court cannot disturb verdict as against manifest weight of evidence, unless record shows fact and circumstance which shocks senses, or grave error and injustice in misapprehension of facts.
In case where the creditor notified the debtor that check with legend “in full settlement of our account to date” would not be so accepted and notified debtor that it would deposit and collect the check tacit acquiescence therein by debtor held not to show accord and satisfaction.
In this case the trial court could conclude from the evidence that there was much more than merely tacit acquiescence by debtor. It could have concluded that there was an express authorization to the creditor to cash the check without waiving his rights. In any event I believe that the trial court is sustained by the record in the following statement as contained in his written opinion:
*303“Upon examination of the authorities and the application of the established principles of law of Ohio to the factual situation in this case we have come to the conclusion that the defense of accord and satisfaction has not been sustained by the requisite degree of proof.”
Referring again to the case of Burton Coal Co. v. Gorman Coal Co., supra,
Sullivan, J., at page 386 of the opinion quotes with approval the following from Worcester Collar Co. v. Henry Woods Co. 209 Mass. 105, 95 N. E. 393:
“It is not every use of the words ‘in full to date’ or equivalent phrase, which constitutes an accord or satisfaction in connection with a payment of a controverted claim. Many cases have arisen where the conditions have been such as make it a question of fact whether there has been an accord and satisfaction, even though these words have been used where a payment has been made. This case falls within that class.
It is rarely that a presiding judge can rule as a matter of law that a burden of proof depending upon inferences from circumstances and oral testimony has been sustained. Usually a question of fact is presented.”
See also 1 O. Jur. 169, Sec. 15:
“Appeal and Error: — The existence of accord and satisfaction being a question of fact, the finding of the trial court on this issue will not ordinarily be disturbed by the reviewing court in the absence of some fact or circumstance appearing on the record which shocks the senses or makes it appear that grave error and injustice has been done by a misapprehension of facts in the record.”
See also Morton v. Siebler Clothing Co. 21 Oh Ap 393, 153 N. E. 227.
The majority opinion seems to rest primarily upon the case of Seeds, Grain & Hay Co. v. Conger, 83 Oh St 169, where only a question of law was presented upon undisputed facts. In that case the trial court at the conclusion of all the evidence upon motion directed a verdict for the defendant. The supreme court affirmed. That case must be clearly distinguished from this case on the facts. In that case, there were no negotiations concerning the check, but riierely a notice by the creditor to the debtor that the amount of the check was *304credited upon account. Upon receipt of this information, the debtor remained silent. The supreme court held that such silence on the part of the debtor did not amount to a waiver or the withdrawal of the conditions of full settlement and that the transaction was, therefore, an accord and satisfaction as a matter of law. Hay etc v. Conger is a leading and authoritative case and when applicable should be followed. The record here, however, presents an entirely different situation. True, we have here a disputed unliquidated claim. But we also have here a dispute as to the facts with the burden of proof resting upon the defendant to establish its defense of accord and satisfaction by a preponderance of the evidence. The trial court was called upon to weigh the evidence and to draw inferences from circumstances and oral testimony considered in relation to documentary exhibits. Thus a question of fact was presented by the record and having been determined by the trier of the facts, should not now be disturbed.
With respect to the amount of the judgment allowed the plaintiff on an accounting in the sum of $3716.86 with interest from April 30, 1943, it appears to me that here again there is presented a question of fact upon disputed issues of fact. The opinion of the trial judge'indicates a careful consideration of the matters in dispute in determining the amount due plaintiff and I cannot find that the judgment in this respect is against the manifest weight of the evidence.
There is another serious question raised by this reversal and and that is whether or not the three judges of this court should concur in a reversal. This action was instituted in the court of common pleas, Sept. 20, 1944, prior to the constitutional amendment of Sec. 6, Art. 4 which by its terms became effective Jan. 1, 1945, applying only to cases instituted since January 1, 1945. If I am correct in my conclusion that this case involves only questions of fact upon the weight of the evidence, then clearly all three judges of the court must concur in a reversal in accordance with the provisions of the Constitution in effect prior to January 1, 1945.
For the reasons above stated it is my conclusion that the judgment of the common pleas court should be affirmed.