
    No. 839
    BURTON COAL CO. v. GORMAN COAL CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 6925.
    Decided March 15, 1926
    17. ACCORD AND SATISFACTION— Where check is sent endorsed “In full settlement of an account to date” and payee notifies drawer of refusal to accept check in accordance with indorsement, but will credit same to account of drawer, and drawer does not protest that action, he cannot thereafter plead accord and satisfaction.
    Attorneys — Treadyway and Marlatt for Burton Coal Co.; M. B. and H. H. Johnson for Gorman Coal Co.; all of Cleveland.
   SULLIVAN, J.

It appears from the evidence presented in this case, that the J. P. Burton Coal Co. on June 11, 1924, after certain negotiations as to settlement of an account, sent a check to the John P. Gorman Coal Co. and endorsed thereon “In full settlement of our account to date”. At this time a much larger amount than the amount of the check was claimed by the payee thereof.

Gorman, immediately upon receipt of check, notified the Burton Coal Co. that the check would not be accepted in full settlement, but would be applied on their account, and pursuant to this notice, before deposit, endorsed thereon “Accepted as only partial settlement of account.”

The Burton Coal Co. did not request return of check after such notice, nor did it stop payment at the bank on which same was drawn.

After refusal of the Burton Coal Co. to pay the balance of the account the Gorman Co. brought this action in Cleveland Municipal Court. The Burton Co. sets up' as their defense that acceptance and deposit of cheek amounted to a complete accord and satisfaction. Trial court rendering judgment for Gorman Co., the Burton Co. prosecuted error. The Court of Appeals held:

1. The payee of the check, having notified drawer of refusal to accept in accordance with endorsement thereon, clearly shows no intention to accept as accord and satisfaction.
2. After receipt of notice by drawer that cheek would be deposited not as complete payment in full, but only to his account it was the obvious duty of such drawer to protest against such action.
3. Having made no protest to the threatened action of payee, it amounted to a practual acquiescence thereof.

Judgment therefore affirmed.  