NO. 88-389 

IN THE SUPREME COIJRT OF THE STATE OF MONTANA 

1989 

RRUNO ROYER, 

Plaintiff and Appellant, 

-vsJOHN RICHARD ETTELMAN, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD:, 

For Appellant: 

Dane C. Schofield; Peterson, Schofield & Leckie, 

Billings, Montana 

For Respondent: 

William J. Gregoire; Smith, Walsh, Clarke & Gregoire, 

Great Falls, Montana 

Sherman 17. Lohn; Garlingtcn, Lohn & Robinson, Missoula, 

Montana 

Submitted on Briefs: Dec. 2, 1988 

Decided: January 6, 1989 

ED SMITH 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

This appeal concerns an alleged accord and satisfaction 

in settlement of a personal injury claim. The District Court 

of the Thirteenth Judicial District, Yellowstone Count!!, sat 

as finder of fact and held that the parties reached an accord 

and that appellant's cashing of respondent's check 

constituted a satisfaction. We affirm. 

Appellant Rruno Royer presents the following issues for 

review: 

(1) Whether the Court erred in concluding that the 

draft itself operated as a full and final release? 

(2) Whether the Court erred in concluding that an 

accord and satisfaction resulted from the conduct between 

Boyer and Hartford? 

(3) Whether the findings of the Court are supported by 

substantial evidence? 

Respondent, Ettleman, and his insurer, Hartford 

Accident and Indemnity, (Hartford) , complain that the issues 

should be changed to reflect the lower court's focus on 

determining the existence of an accord and satisfaction. We 

agree and determine this appeal by reviewing Bruno Bover's 

issue (2): Whether the District Court erred in concluding an 

accord and satisfaction resulted from the parties' conduct? 

The District Court's essential conclusion on accord and 

satisfaction reads: 
That the draft was tendered to the plaintiff 

under such circumstances that he is bound to know 

that it was tendered in full settlement of the 

claim resulting in an accord and satisfaction 

between the parties and a discharqe of the 

plaintiff's whole claim. 

The following facts are relevant to reviewing this 

conclusion: Ettleman's car collided with a vehicle being 

driven by Rose Gonzales. Royer, Gonzales, and several other 

passengers in Gonzales's car were injured. Hartford admitted 

liability for the claims against Ettleman. Ettleman's 

insurance provided $55,000 in coverage. 

Hartford's employee Charles Gailey attempted to divide 

the $55,000 among the injured parties. Boyer ' s father, 

Melvin Boyer, negotiated with Gailey for Bover's share of the 

insurance. Attorneys representing other claimants also 

negotiated with Gailey. 

Melvin Royer demanded $35,000 for his son's claim. 

Gailey rejected the offer. Gailey settled with most of the 

other claimants, and informed Melvin Boyer that only $10,000 

of the $55,000 in coverage remained. Gailey proposed that 

Bruno Boyer accept the $10,000 as a full settlement. Melvin 

and Bruno Boyer met with Gailey to discuss the offer. Melvin 

Boyer instructed his son to reject Gailey's proposal. Gailey 

told Bruno Boyer that as an adult, he could settle the claim 

without his father's authorization. Gailey then gave him a 

release instrument and a check for $10,000 to take home. 

Bruno Boyer accepted and negotiated the check but never 

signed the release. 

At trial Bruno Boyer testified that Gailey lead him to 

believe that the check was for coverage of his medical bills 

only, and that even if he accepted and cashed the check, he 
could still pursue a claim for his other damages. He relies 

principally on Gailey's statement during the meeting that if 

$10,000 were not enough, Boyer would have to sue. According 

to Boyer, this statement reasonably lead him to believe he 

could cash the check, and sue for the rest of his damages. 

Boyer also claims that the following facts and 

contentions support his claim: Gailey never communicated the 

limits of the policy to Royers; Gailey told Boyers that 

either a judge would determine each claimant's share, or a 

meeting would be held and the claimants could attempt to 

determine shares; Gailey settled with other claimants prior 

to informing Royers that no meeting would occur; Boyers' 

demand for a $35,000 settlement separated medical damages 

from other damages; at the time of the settlement meeting, 

Rruno Royer's medical bills totaled $6,248, and Boyers told 

Gailey that at least $2,000 would be needed in the future; 

Gailey told Bovers at the meeting that the !$10,000 should be 

used to pav medical bills; Gailey wrote to Bruno Rover 

shortly after the settlement meeting and stated that medical 

bills should be paid from the $10,000. 

Gailey testified that both Melvin and Bruno Boyer 

appeared to understand that the $10,000 could be retained by 

Rruno Boyer only if he aqreed to accept the money in full 

settlement of the claim. He also testified that he told 

Bruno Boyer that if he wanted to keep the money, he must sign 

the release and send it back to Hartford. Gailey admitted 

telling Rruno and Melvin Boyer that they would have to sue to 

collect more than $10,000. However, Gailey claims Boyer 

mischaracterizes his statement. According to Gailey, he told 

Royers if they refused the settlement offer, he would tender 

the remainder of the coverage, that is, $10,000, to the 

District Court, and they would have to sue to collect on 

their cl-aim. Gailey testified that he never lead Royers to 
believe that he tendered the $10,000 for medical damages 

only. 

Hartford points out that beneath the names of the 

insurer and the claimant on the front of the check in regular 

print Hartford typed in the words "In Full Settlement of AllClaims". Harftord also contends that the following findings 

of the lower court are supported by substantial evidence and 

refute Boyer's contentions: 

19. That in August or September, 1982, Gailey 

contacted Boyer and his father. and informed them 

that there was Ten Thousand and no/100 Dollars 

($10,000) of the policy proceeds . remaining ' with 

which to settle Boyer's case. 

20. That Bruno and Me1 Boyer traveled to Great 

Falls, Montana to pick up the check. A friend of 

theirs, Gerald Davidson, accompanied them on the 

trip. 

21. That when Bruno and Me1 Boyer met with Gaily, 

Me1 tried to get Gailey to increase his $10,000 

offer of settlement, which Gailey refused to do. 

Me1 Boyer then told Gailey that he would not sign 

anything. 

22. That Gailey then offered a $10,000 draft and a 

release to Bruno Boyer and told him he could sign 

the release since he was now 18 years old. 

23. That Bruno Boyer took the $10,000 draft and 

the release from Gailey, saying he wanted to think 

about it, and returned to Billings, Montana. 

24. That Gailey told Bruno Boyer if he wanted to 

accept the $10,000 to sign the release and return 

it to him. 

25. That Bruno Royer cashed the draft, putting 

$4,000.00 in his savings account and giving $6,000 

to his father. 

26. That Bruno Boyer believed he threw the release 

away, but later learned his father was in 

possession of the release form. 

27. That Gailey, subsequent to giving the draft 

and release form to Boyer, sent a letter and a 

separate release form to Boyer, asking that he 

review and execute the same. This Boyer refused to 

do. 
28. That Gailey would, as a standard course of 

business, when a claimant was not sure whether they 

wanted to accept a check as full and final payment, 

send both the draft and a release with the 

claimant, with the instructions that if thev 

accepted the draft thev were to sign and return the 

release. 

29. That the Royers knew that the $10,000.00 check 

was being tendered as full and final settlement of 

Bruno's claims. Me1 Boyer knew this at least as of 

the September 8, 1982 meeting with Gailey in Great 

Falls, and Bruno Boyer learned this from his father 

at least by the time he cashed the draft, if not 

before. He knew he was to sign and return the 

release to Gailey if he cashed the check. 

30. The Boyers have retained the $10,000.00 they 

received and have not refunded or offered to refund 

the money or any part thereof to the Hartford. 

31. The Boyers instituted this action a full 

twenty seven months after cashing the $10,000 

draft . 

The resolution of this case in the lower court depended 

largely on choosing between conflicting evidence. Boyer 

argues for this Court to reweigh the conflicting evidence. 

Rule 52 (a) , M.R.Civ.P., constricts our review of findings oF 

fact, and this Court affirms if substantial evidence supports 

the lower court ' s findings . Price Bld. Service Inc. v. 

Christiansen (Mont. 1985), 697 P.2d 1344, 1347, 42 St.Rep. 

Generally, a disputed, unliquidated obligation may he 

extinquished where the obligated party offers to exchange an 

amount different from or less than the obligation in full 

settlement of the obligation. Section 28-1-1401, MCA. And 

the party owed the obligation agrees to accept and does 

accept the amount offered in full settlement of the 

obligation. Section 28-1-1402, MCA. See also Sawyer 77. 

Somers Lumber Co. (1929), 86 Mont. 169, 282 P. 852. he 

intent of the parties generally controls the issue. 
Rarbarich v. Chicago etc. Ry. Co. (1932), 92 Mont. 1, 30, 9 

P.2d 797, 799. 

This case hinges on whether Royer's acceptance and 

negotiation of the check from Hartford occurred under such 

circumstances that Boyer was bound "to know that the 

intention was to make the payment in full settlement of the 

claim . . . " Sawyer, 282 P. at 854. Put differently, in the 

case of a disputed and unliquidated obligation, the finder of 

fact properly concludes an accord and satisfaction occurred 

where the obligated party makes: 

an offer in full satisfaction of the obligation, 

accompanied by such acts and declarations as amount 

to a condition that if it is accepted, it is to be 

in full satisfaction, and the condition must be 

such that the party to whom the offer is made is 

bound to understand that if he accepts it, he does 

so subject to the conditions imposed. 

1 Arn.Jur.2d Accord & Satisfaction 5 1 (1962). 

The District Court findings thoroughly set out the 

circumstances surrounding acceptance of the check, 

Substantial evidence supports the findings. 

For example, prior to the meeting, evidence 

demonstrated that both Boyers knew that Gailey wanted to 

settle the claim within the remaining amount of coverage. 

Bruno Boyer first denied that he knew only $10,000 remained, 

and then admitted he may have communicated the policy limits 

to a friend, Gerald Davidson, prior to the meeting. Davidson 

testified that Bruno had discussed the $10,000 policy limit 

with him prior to the settlement meeting. 

Bruno Boyer also claimed that he understood at the 

settlement meeting that the $10,000 would be a medical 

damages settlement only. However, he also testified he took 

the release home after Gaile.7 told him tn sign and return the 
release, and that he knew that the release purported a full 

and final settlement. Bruno also witnessed the argument at 

the settlement meeting between Melvin Boyer and Gailey over 

the adequacy of $10,000 as a complete settlement. Moreover, 

it is undisputed that at the time of the settlement meeting, 

medical bills totaled under $10,000. 

Boyer denied reading the face of the check except that 

he read his name, noted Gailey's signature, and the figure 

recited in payment. He testified that the full settlement 

notation escaped his attention. Nevertheless, the presence 

of the notation provides evidence for the District Court's 

conclusion. 

These facts and circumstances, when considered with 

Gailev's version of events, constitute sufficient evidence to 

sustain the District Court's decision. This Court "will not 

overturn the holdings or findings of a trial court simply 

because the evidence Furnishes reasonable grounds for 

difFerent conclusions." Price, 69l P.?d at 1397. Thus, we 

affirm.