Opinion
December 5, 1958 —
January 2, 1959.
APPEALS from a judgment and order of the circuit court for Milwaukee county: RONOLD A. DRECHSLER, Circuit Judge. Judgment affirmed; appeal from order dismissed.
For the plaintiff there were briefs by Patrick H. Fass, and oral argument by Mr. Fass and by Miss Mary Jo Bate, both of Milwaukee.
For the defendant there was a brief by Zillmer Redford, and oral argument by William C. Dill, all of Milwaukee.
On September 29, 1955, Roy H. Olson brought action against Northwestern Furniture Company, a corporation, and Oscar Haase, who is the president of the corporation, seeking to recover $500 arrearage in salary, $17.27 arrearage on expense account, and $6,793.28 commission on sales. Any claim of personal liability of Mr. Haase appears to have been withdrawn.
Plaintiff alleged an agreement that plaintiff was to be employed as director of sales of defendant corporation "with basic salary of One Hundred ($100) Dollars per week, plus expenses and a three per cent commission on the gross sales of the corporation during the period of his employment;" that plaintiff was employed from April 17, 1953, through April 23, 1954.
Defendant denied the terms of employment as alleged in the complaint and alleged that the salary of the plaintiff was to be $100 a week plus certain expenses actually disbursed by the plaintiff to a maximum amount of $50 a month. Defendant alleged a compromise and settlement between the parties, and that a part of the plaintiff's claim was barred by the statute of limitations. Defendant also made a counterclaim in which it was alleged that after plaintiff's employment began plaintiff claimed an additional $50 a month over and above his actual expense; that defendant, in order to settle any controversy with the plaintiff, paid him $500 on March 6, 1954, and also the further sum of $100, both being reduced by necessary withholdings, and defendant sought judgment for the $600 in the event that it be determined that the controversy was not compromised as alleged in the answer.
Defendant moved for summary judgment. In support of the motion, Haase's affidavit stated that while plaintiff was employed, it was his practice to submit monthly expense accounts in which were listed claimed actual expenses incurred by him plus the sum of $50, sometimes referred to as "extra monthly expense," sometimes as "regular expense," and sometimes as "additional expense;" that although plaintiff regularly submitted monthly expense accounts, plaintiff did not, until February 10, 1954, submit any statement or make any claim either orally or in writing for any commissions; that on that date plaintiff wrote a letter to Haase. It read as follows:
"In accordance with our agreement you will find listed below the monthly gross sales of the Northwestern Furniture Company on which commission of 3 per cent was to be paid to me in addition to my salary and expenses: . . . [The sales figures are omitted.]
"Up to the present time there has been no effort on your part to pay this commission as agreed and therefore — unless full payment is received by me on or before Monday, February 15, 1954, I intend to place this matter in the hands of my attorney for whatever action necessary for full payment satisfaction.
"You are also well aware of my expense account in the amount of $359.27, which also is unpaid to date.
"This brings my total expense account and commission to $5,589.41 which is now past due.
"Your immediate action on this matter will be most appreciated."
Haase's affidavit asserted that on receipt of the letter, Haase immediately told plaintiff that he had made no agreement to pay commissions and that the matter of commissions was not discussed thereafter by the plaintiff and Haase.
Haase's affidavit further stated that on March 6, 1954, Haase issued to plaintiff a company check containing the notation "Salary in full thru February, 1954;" that plaintiff saw the check made out and accepted it and cashed it; that on adverse examination plaintiff testified with reference to the notation, "Yes; I knew that was on there and I had some discussion with Mr. Haase at the time, I forget just exactly what it is now; that is why he put that down there as salary, actually that was $50 a month up until that period;" that after plaintiff's employment ceased, he came to the office on May 3, 1954, and wanted two additional payments of $50; that Haase made out a check in the presence of the plaintiff and wrote on it the words, "In full;" that plaintiff accepted the check and cashed it; that on adverse examination he conceded, "Yes, I saw it, for all intents and purposes let's say I saw it." The check on March 6th was in the amount of $458 and on May 3d was in the amount of $91.10.
In opposition to defendant's motion, plaintiff filed affidavits stating a number of conclusions including a claim that the two checks and the notations thereon are ambiguous and not given nor received as settlement in full for all amounts due under plaintiff's contract of employment. Certain additional portions of plaintiff's testimony on adverse examination were also included in plaintiff's affidavits.
Pursuant to order for summary judgment, judgment was entered dismissing the plaintiff's complaint upon the merits and awarding costs to defendant and dismissing defendant's counterclaim on December 17, 1957. Plaintiff appealed.
On May 3, 1957, defendant's attorneys moved that the court determine whether plaintiff was guilty of perjury in his reply to the answer and counterclaim. This motion related to plaintiff's allegation "that defendant's bookkeeping system was of such nature that the gross sales could not become known to the plaintiff until such time as would be within the statute of limitations." Defendant asserted that this allegation was false. Plaintiff denied making any false statement or attempting to mislead the court. On June 28, 1957, in the decision on the motion for summary judgment, the court stated that the motion with respect to perjury would also be dismissed. Apparently no separate order dismissing the motion was entered until July 8, 1958. Defendant appealed from the order.
A claimant's acceptance and retention of a payment which he knows is tendered by an alleged debtor in full settlement of a disputed obligation constitutes an accord and satisfaction. Thomas v. Columbia Phonograph, Co. (1911), 144 Wis. 470, 129 N.W. 522. In that case a plaintiff had accepted and retained a check. An accompanying letter and statement had identified the account and stated that the payment was in full. Plaintiff wrote a letter showing that he so understood. In Holbeck v. Southside Malleable Casting Co. (1936), 220 Wis. 399, 264 N.W. 834, the giving and acceptance of a note in compromise and settlement of a disputed claim constituted accord and satisfaction. In Lange v. Darling Co. (1940), 233 Wis. 520, 524, 290 N.W. 188, there was a dispute as to whether an obligation to pay a bonus was dependent upon fulfilment of a condition. Plaintiff accepted and retained a check which was accompanied by a letter stating that it was "the balance due on your 1934 bonus." It was held that this was an accord and satisfaction.
In the case before us the affidavits do not disclose any oral or written statements expressing the fact that the checks in question were tendered upon the condition that they be accepted in full settlement, except the notations on the checks themselves. It appears to be the general rule, however, that a notation "In full" upon the check sufficiently shows that the payment was tendered upon the condition that it be accepted in full satisfaction. 1 Am. Jur., Accord and Satisfaction, p. 225, sec. 24. See cases cited in Anno. 34 A.L.R. 1035, 1036, and Anno. 75 A.L.R. 905.
The check given May 3d met all the requirements. Plaintiff had ceased to be employed by defendant. It sufficiently appears that the amount of any obligation of defendant to plaintiff was in dispute. Plaintiff conceded that he knew the check was marked "In full" when he accepted and cashed it.
Plaintiff relies upon Johann v. Milwaukee Electric Tool Corp. (1953), 264 Wis. 447, 453, 59 N.W.2d 637. There recovery was sought upon an alleged contract for royalties on an invention assigned by plaintiff to defendant. Defendant claimed an accord and satisfaction where a payment had been made and plaintiff had accepted it in a written instrument as "In full settlement for special services . . . and work." It was there held that it was a jury issue whether the settlement was intended to cover all claims for royalties.
A similar issue might have been presented here if the May 3d check had contained the same notation as the March 6th check, "Salary in full." It appeared that plaintiff had claimed compensation which included weekly payments referred to by the parties at times as salary, reimbursement of expenses, and a commission on sales. There appears to have been no dispute about the weekly payments but there was a dispute both about the reimbursement of expenses and the existence of an agreement to pay commissions. There was nothing about the notation "In full" upon the May 3d check to suggest that it was to be accepted in full settlement of only one part of the disputed claim.
Plaintiff argues that he is entitled to a trial of the issues and suggests that the proof will show that the giving and acceptance of the two checks did not constitute a settlement of the claim for unpaid commissions and expenses. He has not, however, included in his affidavits any evidentiary facts tending to show that the May 3d check was not tendered upon the condition that it be accepted in full. Plaintiff has asserted in his affidavits the conclusion that the checks and the notations thereon are ambiguous but has not asserted any mistake or fraud.
We conclude that the circuit court correctly granted summary judgment for defendant.
Defendant asserted that a statement in one of plaintiff's pleadings was false and asked that the court determine whether perjury had been committed or whether plaintiff was in contempt of court. The circuit court stated in the written decision that this motion would be dismissed. No order to that effect was entered until long after the judgment. Defendant's appeal is from this latter order.
Defendant argues that if plaintiff's statement referred to was false, the trial court could have disregarded plaintiff's affidavit under the principle, "falsus in uno, falsus in omnibus." This argument is unsound because it assumes that a court, in deciding a motion for summary judgment, determines the credibility of the affiants. This is the only type of interest in the contempt proceeding which the defendant claims that it has. Even if defendant had such an interest, it could not survive the affirmance of the judgment in defendant's favor. We therefore dismiss the appeal as moot, although we do not perceive any theory upon which defendant could appeal from this order in any event.
By the Court. — Judgment affirmed; appeal from the order dated July 8, 1958, dismissed.