Where there was no language on either the defendant-auctioneer’s check or in the accompanying letter which clearly expressed that the tendered check was intended to be a settlement of some dispute as to the amount that the auctioneer owed the plaintiff-seller, it was up to the court, as fact-finder, to decide whether the seller’s acceptance of the check constituted an accord and satisfaction.
We affirm judgment for the seller.
The defendant-auctioneer agreed to auction off more than 80 guns for the plaintiff-seller. The auctioneer was to receive a commission, not only on the firearms actually sold during the auction, but also for any firearm which the seller withdrew from the auction.
There was evidence that the auctioneer sold one of the guns for $200 less than its reserve price. For reasons that are unclear, the auction was halted before most of the seller’s guns were offered.
The auctioneer sent the seller a check for $5,396, along with a letter explaining that the seller’s share of the proceeds exceeded $7,500, but that the seller’s share was reduced by the $2,074 commission the auctioneer earned for the firearms that were withdrawn from the auction.
The seller’s president told the auctioneer that he was not entitled to the $2,074 commission; nevertheless, the seller cashed the check. The seller filed this action and, after a bench trial, was awarded the unearned commission and the $200 reserve, plus interest.
Accord & Satisfaction
From the evidence presented, it could reasonably be inferred that there was a lack of an unequivocal intent of one party to make and the other party to accept a lesser payment in satisfaction of a larger claim. It is true that the auctioneer’s letter said the check represented the balance of what the auctioneer thought he owed the seller from the auction. While the language of the letter is strong evidence that accord and satisfaction was present, the language was not so strong as to establish accord and satisfaction as a matter of law.
The sending of a check to cover what a defendant claims is the balance due on an account does not ipso facto show conclusively that an accord and satisfaction was the condition annexed to its acceptance. This ultimate fact can only be determined by the fact-finder.
Where the auctioneer failed to present evidence of the existence of a dispute existing prior to the tendering of the check, G.S. § 25-3-311 does not apply.
Breach of Contract
Regardless of whether the auctioneer’s sale of a gun for less than the reserve price constituted a material breach of contract, the auctioneer failed to meet his burden of proof that he was entitled to a $2,074 commission for the unsold firearms.
The seller met its burden to show that it was entitled to more than $7,500 of the proceeds from the firearms were actually sold. It was the auctioneer’s burden to prove that he had earned a commission for the unsold firearms. As such, it was the auctioneer’s burden to prove that the seller withdrew the firearms from the auction.
There was conflicting evidence as to why the auction was halted. The trial court did not make any finding to resolve the conflict in the evidence. As such, the trial court essentially determined that it was unconvinced about what caused the sale to stop and, therefore, that the auctioneer failed to meet his burden.
Therefore, as the trial court concluded, the auctioneer was not entitled to keep the $2,074 commission based on the unsold firearms.
Pawn & Gifts, Inc. v. Bradley (Lawyers Weekly No. 012-164-18, 9 pp.) (Chris Dillon, J.) (Mark Davis, J., concurring in the result only without separate opinion) Appealed from Sampson County District Court (Sarah Seaton, J.) W. Joel Starling for plaintiff; Gregory Griffin for defendant. N.C. App. Unpub.