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K & K Recycling11/14/2003
what is claimed, and why K&K; at this late date, believes it is entitled to set aside the previous settlement agreement.
Sheehan responded in part:
Mr. Karl did not mention the equipment located in the warehouse, blacksmith shop, machine shop, and in the vicinity of those buildings because he was unaware of what was in these buildings. Mr. Seuffert represented that there was no other equipment and related facilities, other than what was in plain view.
As far as an inventory, I do not have one. Perhaps the best way to address this problem is have Seuffert and Karl coordinate a time to meet in Chicken to review and inventory the property. We are open to a suggested date this winter or early spring. Let me know how you want to proceed.
(Emphasis added.)
Again, in specific response to Seuffert's counsel's request to identify what K&K;was claiming as related equipment and facilities, Sheehan responded that equipment in the buildings was included, and did not list the buildings themselves.
On December 1 Sheehan tentatively suggested that the inspection and inventory take place on April 1, 1999. The meeting did not take place then. But on April 28, 1999, Sheehan wrote Haggart proposing a meeting on May 9 or May 10 " ith respect to the remaining personal property . . . ." By referring to the outstanding dispute as one concerning "remaining personal property" the claim clearly excluded the Old Town buildings. Similarly, Karl in his affidavit of October 30, 1998, refers to the items that he was still due under the AGC agreement as personal property:
When I returned in September to move the dredge, it had been broken into and some items of personal property had been removed. I found most of these items of personal property in the dredge warehouse. I do not know who is responsible for this conduct, however, I do know that these items along with a number of other items in the buildings which I have identified, belong to the dredge and can only be used in conjunction with the particular dredge. Other items are associated with the dredge in that they are used as support equipment. By the time I discovered these other items of personal property Mr. Seuffert was gone, K&K;was already in the process of demobilizing, and winter was setting in. For these reasons I did not move any of these items. My intent is to return in the spring, soon after break-up, to retrieve these items.
(Emphasis added.)
In view of the above, there can be no genuine issue of material fact but that "related facilities" as used in the contract was a reference to personal property and did not include the buildings in Old Town.
Because genuine issues of material fact exist as to which items in the Old Town count as "equipment and related facilities," we conclude that contract interpretation could not support a grant of summary judgment to any of the parties on this issue with respect to personal property. However, conduct and admissions of K&K;make clear that the buildings in Old Town were not included in K&K;s contract with AGC.
3. There was no accord and satisfaction.
Seuffert also argues that he was entitled to summary judgment because K&K;and Seuffert reached an accord and satisfaction at the injunction hearing. "An accord is a contract between a creditor and debtor for a settlement of the creditor's claim by some performance other than that which is due. Satisfaction is the performance of such a contract." An accord and satisfaction discharges the original duty, so any breach of the new duty provides no right of action on the old duty. Antecedent discussions of the accor
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