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Metromarketing Services3/2/2000
repudiate the transaction as fully satisfying MSI's claim for EJR commissions. More importantly, MSI's conditional acceptance of HTT's payment did not operate to negate any condition imposed by HTT. Accordingly, MSI's acceptance of the check as "partial payment" would not preclude HTT's assertion of the defense of accord and satisfaction under Texas common law.
MSI argues that section 1.207 of the Texas Business and Commerce Code preempts the common law doctrine of accord and satisfaction. This section provides that "a party who with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved." TEX. BUS. & COM. CODE ANN. § 1.207(a) (Vernon Supp. 1999). Until recently, there was a split among Texas intermediate appellate courts as to whether this provision preempted the common law doctrine of accord and satisfaction. The majority of courts of appeals addressing the issue found that section 1.207 did not preempt the common law while at least one court found that it did. To resolve the conflict, the Texas legislature revised section 1.207 to specifically state that it does not apply to accord and satisfaction, thus rejecting the minority view that section 1.207 preempts this common law defense. See § 1.207(b) & comment. Although the legislature did not make this revision until after the dispute in this case arose, we hold that the view espoused by the majority of courts in favor of non-preemption was the correct reasoning until the statutory revision on January 1, 1996. Accordingly, we find that HTT's assertion of the common law defense of accord and satisfaction was not preempted. We overrule the first issue.
Accord and Satisfaction as a Matter of Law
Having determined that MSI's acceptance of the check as "partial payment" did not preempt the defense of accord and satisfaction, we now address whether a material fact question exists as to whether the check satisfied commissions due from all EJR invoices or only the three listed on the check, i.e., whether HTT established its defense of accord and satisfaction as a matter of law. In determining whether MSI's acceptance of the check constituted satisfaction as to all claims MSI had against HTT, we consider whether there was an "unmistakable communication to the creditor that tender of the lesser sum is upon the condition that acceptance will constitute satisfaction of the underlying obligation." Jenkins, 449 S.W.2d at 455 (citation omitted). The condition must be plain, definite, and certain; it must also be so clear, full, and explicit as to not be susceptible to any other interpretation. See id.
We find the notation HTT made on the check is not so clear, full and explicit as to be susceptible to no interpretation other than accord and satisfaction of all outstanding invoices. The check stub listed three invoice numbers and the amount to be paid on each invoice. Underneath the invoice numbers, a handwritten notation reads " inal payment for commissions for EJR less deductions." The check totaled $2,395.40. An affidavit from the president of MSI averred that the aggregate of the three invoices exceeded that amount. Neither the check, nor any other document sent with the check, made any reference to the twenty-three other invoices. HTT posits that it tendered the check and MSI accepted it as full payment of all outstanding invoices. However, another reasonable interpretation of these facts would be that the check was intended as full payment of the three invoices listed on the check stub. Because the notation is susceptible to more than one reasonable interpretation, a fact question exists as
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