ALDEN WARD, individually, and )
d/b/a                         )
MASTERCRAFT/MASTERCLEAN, )
                              )
      Plaintiff/Appellee,     )
                              )
                                  Appeal No.  FILED
                                  01-A-01-9803-CH-00151
v.                            )                 April 19, 1999
                              )   Davidson Chancery
GAYLE WILKINSON,              )   No. 96-1871 Cecil Crowson, Jr.
                              )             Appellate Court Clerk
      Defendant/Appellant.    )
                              )


              COURT OF APPEALS OF TENNESSEE


 APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

                 AT NASHVILLE, TENNESSEE


      THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR




ROBERT J. TURNER
Turner Law Offices
208 Third Avenue North, Suite 100
Nashville, Tennessee 37201
     ATTORNEY FOR PLAINTIFF/APPELLEE


JEFFREY A. GREENE
JOHN W. BARRINGER, JR.
Castleman & Greene
110 Glancy Street, Suite 109
Goodlettsville, Tennessee 37072
      ATTORNEYS FOR DEFENDANT/APPELLANT




                 AFFIRMED AND REMANDED



                                   WILLIAM B. CAIN, JUDGE
                               OPINION
         This case results from a contract dispute between Gayle Wilkinson and
Alden B. Ward, Independent Contractors, a sole proprietorship doing business
as Mastercraft/Masterclean. Mr. Ward contracted to rebuild Mrs.Wilkinson’s
home after it was consumed by fire. The court below found that the original
contract price was $73,730.20. As sometimes happens with building agreements,
Mr. Ward’s performance in the agreement took significantly longer than was first
contemplated. As a result of the time and cost overruns, a good faith dispute
arose as to the amount owing under the contract. Apparently in an effort to
resolve the dispute, Mrs. Wilkinson submitted two writings to Mr. Ward. One
writing was a memorandum from Mrs. Wilkinson to Mr. Ward, dated December
8, 1994, which read:
         The following is a break down of payments and credits for
         invoice submitted from work completed at 1204 Strawberry
         Cove. I will forward this to my lawyer today and have him
         cut a check for the balance listed below:

                                       *
                                       *
                                       *
      TOTAL CREDITS                                           $58,679.88
      Less Advance for temporary Living                       $ 1,600.00
      FINAL CHECK                                             $15,050.32


      The second writing submitted to Mr. Ward was a completely handwritten
note containing the following language:
      I s/ Gayle Wilkinson
      I_______ _________
      Agree all payments have been paid in full for work completed at
      1204 Strawber[r]y Cove[.] This releases all responsibility [sic]for
      any further payment or claim by either party.

      12-14-94


      The record reveals that, upon receiving the two writings and the check for
$15,050.32, Mr. Ward circled that final amount on the typed memorandum and
added the following handwritten language to it:



                                      -2-
      Received by Mastercraft/Masterclean paid in full 12-4-94
                                                                   14,250.32
                                                                      800.00
                                 s/Alden B. Ward                   15,050.32


      It is undisputed that Mr. Ward did nothing regarding the handwritten
document. On December 22, 1994, Mr. Ward invoiced Mrs. Wilkinson for what
he alleged was the remainder owing on the construction contract. Ms. Wilkinson
refused to pay, and Mr. Ward brought suit for breach of the construction contract.
Mrs. Wilkinson raised in her pleadings the affirmative defense of accord and
satisfaction. The court below found in pertinent part:
      [I]t was just as likely that the notation made by Plaintiff is a receipt
      as it was a final payment. The Court has determined that the
      Defendant has not carried the burden of proof on accord and
      satisfaction. Therefore, the Court finds that the Defendant owes the
      Plaintiff Six Thousand One Hundred Forty Four Dollars and
      Eighteen Cents (6,144.18) that was documented and agreed to by
      the parties.

The gravamen of Mrs. Wilkinson’s appeal concerns the propriety of this finding.
Both parties on appeal recognize the affirmative nature of the defense of accord
and satisfaction. Tenn.R.Civ.P. 8 (1998).


      Once the existence of a contract has been proven, the defendant in breach
who asserts the defense of accord and satisfaction bears the burden of proof by
a preponderance of the evidence that the contracting plaintiff agreed to accept
lesser payment rendered in satisfaction of the original performance or payment
for which the parties contracted. Rhea v. Marko Const. Co., 652 S.W.2d 332,
335 (Tenn.1983); See also R.J. Betterton Mgmt. Serv., Inc. v. Whittemore et al.,
733 S.W.2d 880, 882 (Tenn.App.1987). Appellant argues that an accord and
satis-faction is in the nature of an agreement, governed by contract law. A more
accurate statement is that the accord of “accord and satisfaction” is a form of
contract.   The satisfaction of a disputed debt (or of an undisputed yet
unliquidated debt) is offered in consideration for the substitute performance.
Lytle v. Clopton, 149 Tenn. 655, 261 S.W. 664 (1924) Cole v. Henderson, 61
Tenn.App. 390, 454 S.W.2d 374, 384 (1969) 1 C.J.S. Accord and Satisfaction §


                                        -3-
2 (1985).


      Appellant claims in her brief, “[t]here is no proof that plaintiff was not
accepting her offer of the $15,050.32 as final payment of the debt she owed.” On
the contrary, the proof is very clear that after failing to obtain an agreement from
Mr. Ward on the first missive, Ms. Wilkinson submitted the second document,
quoted above, for his signature.       When the agreement of the parties is
memorialized in a plain, unambiguous document, the intent of the parties is a
question of law. Petty v. Sloan, 197 Tenn. 630, 638, 277 S.W.2d 355, 358
(1955); such is not the case here. As our supreme court clearly stated:
      To constitute a valid accord and satisfaction it is also essential that
      what is given or agreed to be performed shall be offered as a
      satisfaction and extinction of the original demand; that the debtor
      shall intend it as a satisfaction of such obligation, and that such
      intention shall be made known to the creditor in some unmistakable
      manner. It is equally essential that the creditor shall have accepted
      it with the intention that it should operate as a satisfaction. Both the
      giving and the acceptance in satisfaction are essential elements, and
      if they be lacking there can be no accord and satisfaction. The
      intention of the parties, which is of course controlling, must be
      determined from all the circumstances attending the transaction.
      Lytle v. Clopton, 149 Tenn. 655, 663-64, 261 S.W.2d 664, 666-67
      (Tenn.1969), citing 1 C.J. Accord and Satisfaction § § 1 and 16
      (1914).


      Appellant would consider the error of the trial court below as a question
of law. With regard to this issue our eastern section has stated with equal clarity:
      An accord and satisfaction is established by the intentions of the
      parties at the time of the transaction, R.J. Betterton Mgmt. Serv. v.
      Whittemore, 733 S.W.2d 880 (Tenn.App.1987), and the issue is a
      question of fact to be determined by the trier of fact. Presnell v. Joe
      P. Buis Estate, 673 S.W.2d 146 (Tenn.App.1983). The general,
      applicable rule is well stated in 1 C.J.S., Accord and Satisfaction,
      § 79A:
              Unless the evidence thereof is insufficient to submit
             to the jury or is undisputed and not open to opposing
             inferences, accord and satisfaction, including the
             various elements thereof, is ordinarily a question of
             fact to be determined by the jury or by the court where
             it is the trier of the facts.

Helms v. Weaver, 770 S.W.2d 552, 553-54 (Tenn.App.1989). The evidence in
the record contains two writings.         One, signed by the contract debtor,

                                        -4-
demonstrates only the intent of the debtor. The other, signed by the debtor and
clearly purporting to be an accord and satisfaction, remains unsigned. In a
situation where the writings are at best ambiguous as to intent, the question is of
fact, and Appellant has failed to show that the evidence presented at trial
preponderated against the trial court’s finding. Helms v. Weaver, 770 S.W.2d
552, 553-54 (Tenn.App.1989); Tenn.R.App.P. 13(d) (1998).


      The order of the trial court is affirmed in all respects and remanded for
such further proceedings as may be necessary. Costs on appeal are taxed against
Appellant.




                                        __________________________________
                                        WILLIAM B. CAIN, JUDGE



CONCUR:



_____________________________________
WILLIAM C. KOCH, JR., JUDGE


_____________________________________
PATRICIA J. COTTRELL, JUDGE




                                        -5-
