dissenting.
I disagree with the majority’s resolution of point of error three. In point of error three, the City argues that the writing on the face of the checks did not constitute a conditional endorsement, and the trial court should not have ordered that the amounts be reallocated. I agree. The majority overruled that point of error on two grounds: (1) we cannot consider the City’s ordinance, which mandates how the tax assessor must apply a partial payment, because it was not introduced at trial; and (2) when the City accepted the checks with the conditional endorsement, the doctrine of accord and satisfaction required the City to apply the funds as directed.
First, I disagree with the majority’s refusal to consider the effect of City Ordinance Section 44-16 as to the City’s appeal. The majority says we cannot consider it because it was not introduced at trial, and cites two cases that pre-date the adoption of the Texas Rules of Civil Evidence. Rule 204 states
A court upon its own motion may, or upon the motion of a party shall, take judicial notice of the ordinances of municipalities and counties in Texas ... Any party requesting that judicial notice be taken of such matter shall furnish the court sufficient information to enable it properly to comply with the request and shall give all parties such notice, if any, as the court may deem necessary, to enable all parties fairly to prepare to meet the request.
In State v. Sungrowth VI, California Ltd., 713 S.W.2d 175, 178 n. 2 (Tex.App.— Austin 1986, writ ref’d n.r.e.), the court said:
Although this provision of the Austin Zoning Ordinance was not introduced into evidence at trial, we may nevertheless take judicial notice of its provisions. Under Tex.R.Evid.Ann. 204 (Supp.1986) (eff. Nov. 1, 1984), a trial court may now take judicial notice of a municipal ordi-' nance. An appellate court may take judicial notice of facts which may be properly noticed by a trial court even thought *483the trial court was not formally requested to do so and did not formally announce that it had done so.
The majority is in error in refusing to consider the ordinance.
Section 44-16 of the Code of Ordinances for the City of Houston, states that it will apply a partial payment to the oldest delinquent year first in full. When the amount tendered is not sufficient to pay a delinquent tax year in full, the remainder is applied to outstanding tax, penalty, and interest on a pro rata basis. Section 44-16 of the City ordinance states:
The tax assessor-collector of the city is hereby authorized to accept partial payment on delinquent taxes and the penalty and interest due thereon, subject to the conditions set out here; provided, each partial payment shall be credited against the oldest delinquent tax year or years, and provided further, that each payment shall be divided into the part of the tax actually paid and the penalty and interest due on such part to the date of the partial payment. The tax assessor collector shall issue a “partial payment receipt” to the taxpayer showing the actual amount paid broken down into tax, penalty and interest. Such partial payment shall be apportioned ratably to the city and school taxes due for the year or years to which they are applied and they shall be in amounts which will clear the delinquency within a reasonable time.
(Code 1968, § 44-40.1; Ord. No. 69-699, § 1, 5-28-69).
The notice on the check and in the letter that accompanied the cheeks, was an attempt by First City to circumvent the City’s ordinance.1 First City was charged with the knowledge of the ordinance and knew that no representative of the City could agree to the conditions on the checks.
Second, I disagree with the majority’s holding that the doctrine of accord and satisfaction required the City to apply the funds as directed. The majority states that the City and HISD chose to ignore the instructions on the checks and in the letter regarding application of the funds.
Accord and satisfaction played no role in this dispute. Accord and satisfaction rests upon a new contract, express or implied, in which the parties agree to discharge the existing obligation by a lesser payment tendered and accepted. Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex.1970); Christian v. University Federal Sav. Ass’n, 792 S.W.2d 533, 534 (Tex.App.— Houston [1st Dist.] 1990, no writ). The evidence must show an agreement that the debtor’s payment fully satisfied the entire claim. Christian, 792 S.W.2d at 534. Such conditions must be plain, definite, certain, full, explicit, and susceptible to no other interpretation. Id.
Here, when First City tendered the checks, the tax assessor could not have agreed to take it according to the instructions on the face of the checks because to do so would violate the City’s ordinance. Thus, no representative of the City could have agreed to any terms regarding the application of the tendered amounts. In addition, First City paid the undisputed part of what it owed, not a disputed portion. First City did not tender a lesser payment for what it owed in satisfaction of the entire debt; it merely paid part of the debt, asked that it be applied to a certain accounts, and attempted to reserve the disputed parts for later resolution. I can find no authority that permits the doctrine of accord and satisfaction to apply when a party attempts to pay the undisputed part of a debt, and attempts to reserve the disputed part for later resolution.
I would reverse in favor of the City and HISD.
COHEN, J., concurs.
. The concurring opinion states that the government in this case abused First City. First City was ably represented by one of the largest law firms in this City and, it is well-known, has often represented the City of Houston in much litigation. The point of this is that First City, through its lawyers, was well aware of the City’s ordinance. If there was an abuse in this case, and I do not make that argument, it is more likely that the abuse was received by the City, not imposed by the City.