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Poray, Inc. v. Crescent Industries

APRIL 17, 1957.

PORAY, INC., APPELLEE,

v.

CRESCENT INDUSTRIES, INC., APPELLANT.



Appeal from the Municipal Court of Chicago; the Hon. S.J. STEFANOWICZ, Judge, presiding. Reversed and remanded with directions.

PRESIDING JUSTICE FEINBERG DELIVERED THE OPINION OF THE COURT.

In this action plaintiff sought to recover a balance claimed due for goods sold and delivered to defendant. The defense to the action is accord and satisfaction. There was a hearing without a jury, and upon a stipulation of facts the court entered judgment for plaintiff in the sum of $9,577.37, from which judgment defendant appeals.

It appears from the stipulation of facts that on February 24, 1954, defendant filed its petition in bankruptcy for reorganization under the provisions of Chapter X of the Bankruptcy Act. Plaintiff received notice and filed its proof of claim in said proceeding. On March 1, 1954, a meeting of defendant's creditors was held. Plaintiff had notice and attended said meeting but took no part therein. At that meeting a creditors' committee was selected from those in attendance, representing 92 of defendant's creditors and representing approximately 83 per cent of defendant's liabilities. On March 9, 1954, the United States District Court in said bankruptcy proceeding designated and appointed a creditors' committee of nine to represent the unsecured creditors. Neither plaintiff nor its representative was appointed or acted on said committee or on the one elected by the creditors at their meeting.

On May 3, 1954, defendant, by leave of court, filed a written proposal of settlement with its creditors, classified as secured and unsecured. Plaintiff was given notice of the petition.

On June 22, 1954, defendant filed in said proceeding a new plan of settlement proposed by the creditors' committee and a petition to dismiss said proceeding upon the approval of the plan of settlement. By the new plan of settlement, plaintiff, as well as other creditors, was to receive 100 per cent payment of its claim within a period of four and one-third years. The plan of settlement, as applying to the unsecured creditors, was to pay 15 per cent cash and the balance of 85 per cent in four equal annual installments, the first payment due on January 15, 1956, and was to be evidenced by defendant's promissory note, and check for the cash payment.

On June 22, 1954, the United States District Court set for hearing said petition to dismiss the proceeding and provided for notice to all creditors. Plaintiff received notice of the order. On July 2, 1954, defendant's petition to dismiss again came on for hearing and was continued to July 13, and of this plaintiff had notice. On July 13, 1954, a hearing was held upon the petition to dismiss said proceeding. Plaintiff was present in court, as were all the other creditors. When the court inquired if there were any objections to the dismissal of the proceeding, neither plaintiff nor the other creditors made known any objection. While plaintiff never expressly consented orally, or in writing, to the new plan of settlement, there was no objection by plaintiff filed or noted upon the hearing. An order was entered dismissing the bankruptcy proceeding.

On September 11, 1954, a check was given to plaintiff for the 15 per cent cash payment called for by the plan, as well as defendant's installment note for the balance of 85 per cent of plaintiff's claim. On September 19, 1954, which was after defendant had mailed checks and notes to all the other creditors, plaintiff for the first time notified defendant by telephone that it had not consented to the plan of settlement and would not accept said check and note, but did not return them to defendant. Several times thereafter plaintiff notified defendant of its demand for full payment of its claim, and on March 16, 1955, plaintiff wrote defendant a letter, enclosing a statement of the account in the amount of its original claim filed in the bankruptcy proceeding. Not until June 29, 1955, after several conferences and negotiations for adjustment of their differences had failed, did plaintiff for the first time tender back to defendant the check and note in question.

The order of the District Court dismissing the bankruptcy proceeding recited, among other things, that the court, "deeming it to be to the best interests of the creditors and the debtor that this proceeding be dismissed, and no objections appearing, It Is Hereby Ordered that this entire proceeding be and it hereby is dismissed, such dismissal to be effective forthwith."

On July 12, 1955, defendant wrote plaintiff a letter, acknowledging the receipt of the registered letter from plaintiff's attorney, together with the note and check in question. The letter stated that defendant had repeatedly taken the position "that the retention by you of said check and note constituted an acceptance thereof by you," and that defendant would not pay, except in accordance with the plan of payment in the bankruptcy proceeding.

To sustain the judgment, plaintiff argues that a promise by a creditor of a liquidated claim to accept less, or the acceptance of less than the amount due from the debtor, does not constitute accord and satisfaction, since it lacks consideration. As an abstract proposition of law this is sustained by many decisions in this state, but the doctrine is not without exception and, as we shall point out, does not apply to a failing debtor when the creditor knows the debtor is in failing circumstances or has substantial reason for believing so. The petition in bankruptcy and its subsequent proceedings clearly establish that defendant was in failing circumstances, unable to pay its debts as they matured. Plaintiff had full knowledge of the proceedings and attended the hearings. Particularly is it important to note that plaintiff attended the hearing upon defendant's petition to dismiss the proceedings upon the basis that the plan of payment proposed was accepted by the creditors. The court called for objections while plaintiff was in court attending the hearing, and hearing none the court so recited in its order and dismissed the proceeding.

When the court called for objections with plaintiff present, it was the duty of plaintiff to speak, if it had any objection. Implicit in plaintiff's silence was its accord to the offer of settlement. Its retention of the check and note in question, over the long period of time indicated, constitutes an acceptance resulting in accord and satisfaction.

Conceivably, had plaintiff voiced its objection to the plan of payment when the court called for objections, a different result might have obtained, and the proceeding would not have been dismissed. The defendant would have had the protection of the bankruptcy court against any effort of plaintiff to force payment in full in cash, instead of part payment in cash and the balance in installments over a period of four years. Notwithstanding plaintiff orally notified defendant it would not accept the plan of payment, it retained the check and the note for over nine and one-half months before finally returning them to defendant. Under such circumstances the law seems clear that the retention of the note and check constitutes accord and satisfaction of the original account. Plaintiff must look to the note and check for payment.

In Seidman v. Chicago Eye Shield Co., 267 Ill. App. 77 (cert. denied), and cases there cited, it was held:

"If the proposed settlement and the payment of the account tendered is not satisfactory to him, it is the creditor's duty immediately to ...


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