dissenting.
I respectfully dissent from the Court’s opinion. In my view, the trial court should have granted summary judgment in favor of Highland.
In Fairchild v. Mathews, 91 Idaho 1, 4, 415 P.2d 43, 46 (1966), the Court said:
Also an accord and satisfaction cannot arise by reason of the payment of less than is due, unless it clearly appears not only that this was the intention of the payor, but also that the payee expressly agreed to it, or was bound to know of the intention at the time of the acceptance; in effect, that his taking of a check would be tortious except upon the assumption of a taking in full satisfaction.
(Emphasis added).
Before trial, Highland moved for summary judgment on the grounds that there were no genuine issues of material fact remaining and that the acceptance of Highland’s check by Perkins constituted a complete accord and satisfaction of the debt upon which the suit was based. In an affidavit in support of the motion, the president of Highland stated that when he gave Perkins the check he made clear to Perkins the intention of Highland that if Perkins accepted the check it would be as payment in full for all of the hauling that Perkins had done for Highland. Also, in his deposition Perkins stated that he knew Highland’s check was all Highland intended to pay him. This evidence was not contested by Perkins in opposing the motion for summary judgment.
Perkins’ knowledge of Highland’s intent removed any genuine issue of material fact as to the applicability of the doctrine of accord and satisfaction. I would reverse the trial court’s denial of Highland’s motion for summary judgment.