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Pleading and Proof

According the general rules of pleading, in responding to a pleading, a party must affirmatively state any avoidance or affirmative defense.  Accord and satisfaction is an affirmative defense.[i]  Therefore a defense of accord and satisfaction must be specifically pleaded by the party raising it.[ii]

In the case of Mass v. Melymont[iii], it was observed that an accord and satisfaction arising from a motorist’s negotiation of an automobile insurer’s settlement drafts following his collision with insured was an affirmative defense required to be raised by the insurer in the motorist’s action seeking the difference between those drafts and amount charged by the body shop to repair his car.
Where the defense of accord and satisfaction is not pleaded or expressly or impliedly consented to between the parties, it will be considered waived.[iv]  However, the plaintiff is required to negate a claim of accord and satisfaction only when the defendant raises it.  Therefore a person who asserts a claim does not need to anticipate the defense of accord and satisfaction and negate it in the initial pleading.[v]

In the case of Dugan & Meyers Const. Co., Inc. v. State of Ohio Dept. of Administrative Services[vi], it was observed that a state university which failing to plead accord and satisfaction in its answer and to make a request to amend its answer during the trial was taken to have waived the defense of accord and satisfaction to a lead contractor’s claim for recovery of cumulative impact costs.

In the case of South Carolina Farm Bureau Mut. Ins. Co. v. Kelly[vii], proceedings were instituted by the insurer for reimbursement of claims paid for house fires, which was later determined to have been deliberately started by the insured’s son.  The court in this case held that the insured waived the possible defense that the insurer’s policy release was an accord and satisfaction by failing to plead accord and satisfaction in his answer.
In pleading a defense of accord and satisfaction, the essential elements of accord and satisfaction should be set forth in the plea or answer.[viii] However, generally pleadings of accord and satisfaction tend to be construed liberally by courts.[ix] Therefore where facts are alleged which, given their proper force and effect, point to an accord and satisfaction, they may be so regarded even if not expressly pleaded as constituting an accord and satisfaction.[x]

In the case of Williams v. Johnson[xi], the answer alleged that an accord had been reached between the parties consisting of an agreement between them to settle the claims set forth in the complaint.  It was also pointed out in the answer that the satisfaction consisted of the payment of the consideration agreed upon.  The court therefore held in this case that the essential elements of an accord and satisfaction were set forth in the answer. 

An answer sufficiently pleads accord and satisfaction when it contains or presents all of the elements of an accord and satisfaction, even if it does not use the terms accord and satisfaction and even if it could have been more technically or artfully drawn.[xii]

However where local practice provides for a replication or reply to a plea or answer setting up an affirmative defense, and an accord and satisfaction is pleaded, the plaintiff may attack the accord and satisfaction for fraud[xiii], duress, or mutual mistake by way of replication or reply[xiv].

The plaintiff can also not avoid an accord and satisfaction on the ground of mistake where mistake was neither pleaded nor proved.[xv]


[i] Sims-Madison v. Inland Paperboard and Packaging, Inc., 379 F.3d 445 (7th Cir. 2004)

[ii] Waide v. Tractor and Equipment Co., 545 So. 2d 1327 (Ala. 1989)

[iii] 1 Misc. 3d 906(A), 781 N.Y.S.2d 625 (Dist. Ct. 2003)

[iv] Wolowitz v. Thoroughbred Motors, Inc., 765 So. 2d 920 (Fla. Dist. Ct. App. 2d Dist. 2000)

[v] Landers v. State, 56 A.D.2d 105, 391 N.Y.S.2d 723 (3d Dep’t 1977)

[vi] 2003-Ohio-3709, 2003 WL 21640882 (Ohio Ct. Cl. 2003)

[vii] 345 S.C. 232, 547 S.E.2d 871 (Ct. App. 2001).

[viii] U.S. v. Lundstrom, 139 F.2d 792 (C.C.A. 9th Cir. 1943)

[ix] Frame v. State ex rel. Com’rs of Land Office, 1945 OK 338, 196 Okla. 292, 164 P.2d 865 (1945)

[x] Riskas v. De La Montanya, 145 Cal. App. 2d 636, 302 P.2d 821 (1st Dist. 1956)

[xi] 244 S.C. 406, 137 S.E.2d 410 (1964)

[xii] Cass Const. Co., Inc. v. Brennan, 222 Neb. 69, 382 N.W.2d 313, 42 U.C.C. Rep. Serv. 1591 (1986)

[xiii] Weesner v. Leased Transp., 95 Cal. App. 2d 414, 213 P.2d 26 (2d Dist. 1949)

[xiv] Deibel v. Kreiss, 38 Ohio L. Abs. 587, 50 N.E.2d 1000 (Ct. App. 8th Dist. Cuyahoga County 1943)

[xv] Dickson v. Stockman, 411 S.W.2d 610 (Tex. Civ. App. Texarkana 1966)

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