This Court has stated the criteria to be used in
determining whether an action is barred by res judicata as
follows:
1. The parties or their privies must be the same;
2. The subject matter of the action must be the
same;
3. The issues must be the same and must relate to
the same subject matter; and
4. The capacities of the persons must be the same
in reference to that subject matter and to the
issues between them. Fox v. 7L Bar Ranch Co.
(1982), 198 Mont. 201, 206, 645 P.2d 929, 931, S-W
Co. v. John Wright, Inc. (1978), 179 Mont. 392,
405, 587 P.2d 348, 355.
In the present case Nelson's res judicata claim fails as
it relates to criteria 2 and 3. Clearly, neither the subject
matter nor the issues raised were the same in both cases.
The subject of the unpaid security deposit and the issue of
its payment were never before the District Court in Cause No.
DV-83-537 since refund of the entire deposit was not refused
until January 25, 1984 when Nelson tendered a partial refund
and the prior case was terminated by stipulation of the
parties on October 31, 1983. We, therefore, affirm the
District Court's finding that all matters involving the lease
agreement were res judicata with the exception of the
security deposit which was not contemplated in the previous
action.
Nelson next contends that the District Court erred in
not finding that the restrictive endorsement on the check
sent by Nelson to Geissler constituted an accord and
satisfaction. Geissler, in the converse, contends that the
District Court correctly ruled that there was no accord
entered into by the parties.
The phrase "accord and satisfaction" means the
substitution of a "new agreement" in satisfaction of an
obligation, different from the original rights existing under
an antecedent liability. From that premise it follows that
when an accord has been executed it operates as a complete
bar to an action on the original claim. See Sawyer v. Somers
Lumber Co. (1929), 86 Mont. 169, 171, 282 P. 852, 854.
In Montana both accord and satisfaction are defined by
statute. Section 28-1-1401, MCA, provides:
An accord is an agreement to accept in extinction
of an obligation something different from or less
than that to which the person agreeing to accept is
entitled. Though the parties to an accord are
bound to execute it, yet it does not extinguish the
obligation until it is fully executed.
Section 28-1-1402, MCA, defines satisfaction as follows:
Acceptance by the creditor of the consideration of
an accord extinguishes the obligation and is called
satisfaction.
There is no doubt in the instant case but that Geissler
accepted the consideration tendered by Nelson which would
constitute a satisfaction if in fact the parties entered into
an accord. Section 28-1-1401, MCA, clearly defines an accord
as an "agreement" to extinguish the original obligation for
something different or less than the creditor is entitled.
There, however, is the additional requirement that an offer
to enter an accord be accepted in writing. Section
28-1-1403, MCA, provides:
Part performance of an obligation, either before or
after a breach thereof, when expressly accepted &
the creditor in writing in satisfaction or rendered
- pursuance o f an agreement - w-
in 7 -
. .
in r
it
% for that
purpose, though without any new consideration,
extinguishes the obligation. (Emphasis added. )
In Sawyer, we held that the endorsement of a check by a
creditor for the purpose of cashing it is not such a writing
as is contemplated by 5 28-1-1403, MCA. Sawyer, 86 Mont. at
177, 282 P. at 854. In the instant case there was also no
agreement in writing to enter an accord other than Geissler's
endorsement of the check. To hold on the facts of this case
that the parties did enter an accord simply by Geissler
endorsing Nelson's check would be akin to condoning a form of
commercial blackmail. We, therefore, hold that the District
Court properly found that there was no accord entered by the
parties because there was no such "agreement" and even if
there was it was not in writing.
The final two issues raised by Nelson are simply