                                NO. 88-389
               IN THE SUPREME COIJRT OF THE STATE OF MONTANA

                                   1989



RRUNO ROYER,
                Plaintiff and Appellant,
       -vs-
JOHN 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, 1 9 8 8
                                     Decided: January 6, 1 9 8 9



                                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 Cut!
                                                  on!,    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
i n s u r e r and t h e c l a i m a n t on t h e f r o n t o f t h e check i n r e g u l a r
p r i n t H a r t f o r d t y p e d i n t h e words " I n F u l l S e t t l e m e n t of All-
Claims".        Harftord a l s o contends t h a t t h e following f i n d i n g s
o f t h e lower c o u r t a r e s u p p o r t e d by s u b s t a n t i a l e v i d e n c e and
r e f u t e Boyer's contentions:


        19.       That i n August o r September, 1982, G a i l e y
        c o n t a c t e d Boyer and h i s f a t h e r . and informed them
        t h a t t h e r e was Ten Thousand and no/100 D o l l a r s
         ( $ 1 0 , 0 0 0 ) o f t h e p o l i c y p r o c e e d s . remaining ' w i t h
        which t o s e t t l e B o y e r ' s c a s e .
        20.       That Bruno and Me1 Boyer t r a v e l e d t o G r e a t
        F a l l s , Montana t o p i c k up t h e check.               A f r i e n d of
        t h e i r s , G e r a l d Davidson, accompanied them on t h e
        trip.
        21.       That when Bruno and Me1 Boyer met w i t h G a i l y ,
        Me1 t r i e d t o g e t G a i l e y t o i n c r e a s e h i s $10,000
        o f f e r o f s e t t l e m e n t , which G a i l e y r e f u s e d t o do.
        Me1 Boyer t h e n t o l d G a i l e y t h a t he would n o t s i g n
        anything.
        22.       That G a i l e y t h e n o f f e r e d a $10,000 d r a f t and a
        r e l e a s e t o Bruno Boyer and t o l d him h e c o u l d s i g n
        t h e r e l e a s e s i n c e he was now 18 y e a r s o l d .
        23.       That Bruno Boyer took t h e $10,000 d r a f t and
        t h e r e l e a s e from G a i l e y , s a y i n g he wanted t o t h i n k
        a b o u t i t , and r e t u r n e d t o B i l l i n g s , Montana.
        24.       That G a i l e y t o l d Bruno Boyer i f h e wanted t o
        a c c e p t t h e $10,000 t o s i g n t h e r e l e a s e and r e t u r n
        it t o him.
        25.       That Bruno Royer cashed t h e d r a f t , p u t t i n g
        $4,000.00 i n h i s s a v i n g s a c c o u n t and g i v i n g $6,000
        t o h i s father.
        26.       That Bruno Boyer b e l i e v e d he t h r e w t h e r e l e a s e
        away,          but     later       learned       his      father    was      in
        p o s s e s s i o n o f t h e r e l e a s e form.
        27.       That Gailey, subsequent t o g i v i n g t h e d r a f t
        and r e l e a s e form t o Boyer, s e n t a l e t t e r and a
        s e p a r a t e r e l e a s e form t o Boyer, a s k i n g t h a t he
        r e v i e w and e x e c u t e t h e same.        T h i s Boyer r e f u s e d t o
        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 o F
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 7 7 .
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, 2 8 2 P. at 8 5 4 . 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, 6 9 l P . ? d at 1397. Thus, we
affirm.
