 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Metromarketing Services3/2/2000
).
If the extrinsic evidence conclusively shows the agreement cannot be completed within one year, the agreement falls within the statute of frauds as a matter of law. See Niday, 643 S.W.2d at 920. In such cases, summary judgment is proper. If, however, the extrinsic evidence is disputed as to whether the agreement can be completed within one year, what constitutes a reasonable time is a question of fact, which precludes summary judgment. See Hall, 308 S.W.2d at 17; Adams v. Big Three Industries, Inc., 549 S.W.2d 411, 415 (Tex. Civ. App.--Beaumont 1977, writ ref'd n.r.e.).
Here, neither party addressed in the lower court or briefed on appeal what constitutes a reasonable time for performance of their business referral agreement. As the summary judgment movant asserting that the statute of frauds barred MSI's claims, HTT was required to prove that it was entitled to summary judgment as a matter of law. The only evidence HTT produced that arguably addresses the issue of a "reasonable time" for completion of performance of the agreement are facts arising after the contract was formed. The court may not consider this evidence. See Hall, 308 S.W.2d at 17; Gerstader, 884 S.W.2d at 850. Lacking any extrinsic evidence bearing on the issue of a "reasonable time" for completion of performance, the trial court could not have determined that the statute of frauds applied to the business referral agreement, much less found that the agreement violates the statute. Therefore, we find that HTT was not entitled to summary judgment based on the statute of frauds.
ACCORD AND SATISFACTION
MSI contends the trial court erred in granting summary judgment based on the affirmative defense of accord and satisfaction. In the first issue, MSI argues that its acceptance of HTT's check as "partial payment" preempts the common law defense of accord and satisfaction. Alternatively, in the second issue, MSI argues that a material question of fact exists as to whether its acceptance of the check constituted satisfaction as to all twenty-three or more outstanding invoices or only as to the three invoices specifically listed on the check.
Preemption of Accord and Satisfaction
An accord and satisfaction occurs "when parties agree to the discharge of an existing obligation in a manner other than in accordance with the terms of their original contract." Smith-Hamm, Inc. v. Equipment Connection, 946 S.W.2d 458, 462 (Tex. App.--Houston [14th Dist.] 1997, no writ). The "accord" is the new agreement and the "satisfaction" is the discharge of the obligation. To establish this defense, the evidence must show both parties agreed that the amount paid by the debtor to the creditor fully satisfied the entire claim. See Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex. 1969). To repudiate a transaction that purports to fully satisfy a claim, a creditor must return the tendered draft. See Pileco, Inc. v. HCI, Inc., 735 S.W.2d 561, 562 (Tex. App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.). The creditor cannot strike the debtor's conditions from the face of the instrument or insert his own provision that the check is partial payment and accepted "without prejudice" or "under protest." See id. at 563; Hixson v. Cox, 633 S.W.2d 330, 332 (Tex. App.-Dallas 1982, writ ref'd n.r.e.).
The check HTT tendered to MSI contained the following notation:
DATE INVOICE AMOUNT 04/27/95 3403 41.27 41.27 06/01/95 4698 226.54 226.54 03/01/95 948 2127.59 2127.59 FINAL PAYMENT FOR COMMISSIONS FOR EJR LESS DEDUCTIONS
Before cashing the check, MSI endorsed it with the notation, "Accepted as Partial Payment." Because MSI did not return the tendered draft, it did not
Page 1 2 3 4 5 6 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|