dissenting.
I respectfully dissent.
The real issue in this case is whether the agreement to escrow $775.00 pending completion of the construction constituted an accord and satisfaction as a matter of law. The majority applies accepted rules of construction to hold that it does. I would, applying those same authorities, hold that the thundering silence of the agreement itself, combined with the conflicting expressions of the parties to that agreement, created a fact issue that should have been submitted to the jury.
The trial court, after both sides closed the evidence, instructed a verdict for Harris, the builder. The Court of Civil Appeals reversed and remanded for a retrial, holding that fact issues were presented in several respects. I would affirm the Court of Civil Appeals judgment.
While it is the performance of a promised “accord” that generally constitutes the “satisfaction,” a promise alone may be accepted as satisfaction. Whether this be the case depends upon the intent of the parties and whether they mutually assented to it. In McCarty v. Humphrey, 261 S.W. 1015 (Tex.Com.App.1924, judgmt. adopted), the court said:
“. . accord and satisfaction, being dependent upon agreement, only occurs where the parties mutually assent to it. Their intention is a controlling element. In such a transaction ‘there can be no agreement expressed or implied when both parties have no intention to make it, or when one has but the other has not.’ ”
See also Anderson Development Co. v. Producers Grain Corp., 558 S.W.2d 924, 926-7 (Tex.Civ.App.—Eastland 1977, n. r. e.).
It seems to me that the majority opinion fails to deal adequately with the essential question involving the propriety of the instructed verdict: Was there any evidence of probative force, viewing the evidence in the light most favorable to Rowe, the buyer, disregarding conflicts and testimony adverse to him, and indulging any inference properly drawn from the evidence in favor of Rowe, that is contrary to the instructed verdict? If so, and if reasonable minds could differ, then the instructed verdict was improper and the issue should have been submitted to the jury. White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943).
The evidence clearly raises a fact issue about whether the parties intended to create an accord and satisfaction by their agreement of July 7, 1976. The parties themselves gave the only testimony about whether the agreement was intended to be an accord and satisfaction. Their testimony was diametrically opposed.
Rowe testified that he told Harris:
“ ‘I will move in and I will let you complete these items, but as an incentive, to show me that you will complete these items, I would like a monetary amount set aside in an escrow account and at the end of thirty days •. . .if you have not completed those items, then that money will be transferred to me.’ So originally, I was talking more in terms of *308putting an actual dollar amount on the value of those items that were not finished and he wouldn’t adhere to it, so we settled on a smaller amount, which is just a token amount as an incentive, which I felt sure that he would complete the work, . . .
Harris, on the other hand, testified that he intended that the amounts would be repaid to Rowe “in lieu” of completion. He acknowledged that Rowe had tried to set the figure at a higher level.
This court recently set out the requirements of an accord and satisfaction in Jenkins v. Henry G. Beck Co., 449 S.W.2d 454 (Tex.1969). In reversing a summary judgment the court declared no accord and satisfaction had been established as a matter of law. We said:
“The burden was upon Beck as the movant for summary judgment to conclusively establish the affirmative defense of accord and satisfaction. This defense rests upon a new contract, express or implied, in which the parties agree to the discharge of the existing obligation by means of the lesser payment tendered and accepted. . . . The evidence must establish an assent of the parties to an agreement that the amount paid by the debtor to the creditor was in full satisfaction of the entire claim. . The minds must meet and where resting in implication the facts proved must irre-sistably point to such conclusion. . There must be an unmistakable communication to the creditor that tender of the lesser sum is upon the condition that acceptance will constitute satisfaction of the underlying obligation. It has been said that the conditions must be made plain, definite and certain, that the statement accompanying the tender of a sum less than the contract price must be so clear, full and explicit that it is not susceptible of any other interpretation. . . . that the offer must be accompanied with acts and declarations which the creditor is ‘bound to understand,’ . . . .” (Emphasis added.)
In the case at bar, the majority apparently bases its holding upon the written agreement alone in the light of the attending circumstances and disregards the testimony of Rowe. Can it be valid to hold here that the minds “met” where the written agreement is silent on the specific point of a maximum limit of damages if the construction was not completed? If the holding rests on implication, do the “facts proved irresistably point to such conclusion”? Was there an “unmistakable communication”? Was the agreement “so clear, full and explicit that it is not susceptible of any other interpretation”? An examination of the agreement itself, the circumstances and the testimony of intentions, when viewed in the light most favorable to Rowe, raise a fact issue for the jury to determine.
In the instant case, the agreement is just as fairly susceptible to the construction given it by Rowe as it is to that given it by Harris and the majority. Rowe testified that the escrowed $775.00 was merely an incentive for Harris to complete the agreed-upon deficiencies in the new home within thirty days. Rowe recounted that he couldn’t get Harris to agree to a greater amount and that the money in escrow was for “token” amounts for the items to be completed. It was never his intention to accept those amounts as “damages,” and he really had no expectation that the"'work would not be completed as agreed.
In George Linskie Company v. Miller-Picking Corp., 463 S.W.2d 170, 172 (Tex.1971), this court reversed a summary judgment granted on the basis of the existence of an accord and satisfaction as a matter of law. The contractor, Linskie, had accepted and cashed a check for a part of what he sued for as owing. The check had been received by Linskie with a cover letter detailing exactly which portions of each invoice were being rejected. We quoted approvingly from Jenkins v. Beck, and reaffirmed the requirement that the party asserting the accord and satisfaction must “make known to [the other party] in clear and unmistakable terms that the tender was intended to be made upon the condition *309that its acceptance would constitute full satisfaction of all pending claims . . . ” at page 173. Significantly, we pointed out two characteristics of the letter indicating the absence of an accord and satisfaction that apply to the agreement between Harris and Rowe: (1) the letter “did not state positively that the defendant would pay no more than the amount of the check [agreement] enclosed,” and (2) “it does not say or infer that plaintiff should not cash the check [sign the agreement] unless plaintiff was willing to accept it in full settlement of the listed invoices.” We there held that the letter was susceptible of the construction given it by the contractor, viz., that it was a partial payment and of the undisputed items only, and that it could not be said to constitute an accord and satisfaction as a matter of law.
In the instant case, the agreement is fairly susceptible to the construction given it by Rowe; the majority simply agreed with the construction given it by Harris. Under Jenkins v. Beck and its progeny, however, the determination should have been submitted to the jury. Ives v. Watson, 521 S.W.2d 930 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.); Ambox v. Stewart and Stevenson Services, 518 S.W.2d 428, 434 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.); Eicker v. Snider, 517 S.W.2d 926 (Tex. Civ.App.—Waco 1974, writ ref’d n. r. e.); Charlie Thomas Courtesy Ford v. Sid Murray Agency, 517 S.W.2d 869 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); Texas Gulf Sulphur Co. v. Gladys City Co., 506 S.W.2d 281 (Tex.Civ.App.—Beaumont 1974, writ ref’d n. r. e.); Pickering v. First Greenville Bank, 495 S.W.2d 16 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.); Benson v. Travelers Insurance Co., 464 S.W.2d 709 (Tex.Civ.App.—Dallas 1971, no writ).