Craig A. and Roseann B. Miller - Page 15




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          tendered that the debtor intended such remittance to constitute             
          payment in full of the particular claim in issue.  Thompson v.              
          Williams, 259 Cal. Rptr. 518, 521 (Ct. App. 1989).                          
               A writing is not essential to an accord and satisfaction; it           
          may be implied.  Id.  Whether a transaction constitutes an accord           
          and satisfaction depends on the intention of the parties as                 
          determined from the surrounding circumstances, including the                
          conduct and statements of the parties, and notations on the                 
          instrument itself.  In re Marriage of Thompson, 48 Cal. Rptr. 2d            
          882, 887 (Ct. App. 1996).  A claim can be discharged by accord              
          and satisfaction under California law even if a check is received           
          without written or oral warning that the check is in full                   
          satisfaction of a claim if “the surrounding circumstances [are]             
          sufficient to give * * * [the creditor] notice of that fact.”               
          Keppard v. Intl. Harvester Co., 581 F.2d 764, 767 (9th Cir.                 
          1978).  In the present case, although there was no restriction or           
          limiting condition written on the check, the circumstances were             
          sufficient to give rise to an inference that cashing the check              
          might discharge the claim.  Petitioners received the check                  
          personally from Pellegri Sr., who informed them that he had                 
          negotiated a settlement with JTF concerning the damage to the               
          apricots.  Pellegri Sr. gave them Phillips’s report, which                  
          explained in detail how the damages were computed.  Petitioners             
          subsequently were given a copy of the release.                              






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