Opinion
No. 73-3413. Summary Calendar.
Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
March 15, 1974.
C. Ronald Patton, Rome, Ga., for plaintiff-appellant.
L. Robert Lake, George A. Haas, Atlanta, Ga., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.
Plaintiff, Edward Leon Coen, appeals from an order of the district court granting summary judgment in favor of C H Transportation Company, Inc. Under diversity jurisdiction plaintiff sought damages for an alleged breach by C H of a lease agreement under which he leased to defendant his truck-tractor and agreed to drive the vehicle as an employee of the company. Plaintiff alleges that according to the contract C H was required to pay him 70 per cent of the gross revenue derived from the truck, less 5 per cent on backhaul freight, less driver's gross pay. The contract was executed on November 19, 1966. Plaintiff thereafter received monthly checks together with accompanying settlement sheets itemizing the deductions and calculating the payment due each month to plaintiff. Plaintiff made no objection to those calculations and accepted and cashed the checks. In July 1969 he allegedly became aware that payments were computed on the net, rather than the gross, revenue and filed the instant complaint.
The district court found after examining the monthly statements that it was obvious that plaintiff's compensation was calculated after deductions of the expenses and that plaintiff should not be allowed to reap benefits of the contract for three years and now allege a breach because of unawareness. Based on the principle of an implied accord and satisfaction, summary judgment was granted. We agree with the district court.
Affirmed.