The Chancellor then proceeds to the following conclusions: "Thus, the Court is of opinion that the facts of the case bring it within the rule laid down in Vol. 1, American Jurisprudence 225-226, and approved by our Court of Appeals, and Supreme Court in the case of Continental Insurance Co. v. Weinstein, 37 Tenn. App. 596, at [page] 602, and 267 S.W.2d 521, wherein it is said: "`The creditor to which check is sent or other remittance made as payment in full has the option either of accepting it on the conditions on which it is sent, or of rejecting it.

If defendants are alleging that wrongful intent caused the process to be issued, the claim is for malicious prosecution, Martinez v. English, 267 S.W.2d 521, 529 (Tex. App.-Austin 2008, pet. denied), which they have not pleaded. Inasmuch as defendants have done nothing more than recite the elements of a cause of action for abuse of process along with legal conclusions, dismissal is appropriate.

Globe Rutgers Fire Insurance Co. v. Cleveland, 162 Tenn. 83, 34 S.W.2d 1059, 1060-1061 (1931). See also Emmco Insurance Co. v. Beacon Mutual Indemnity Co., 204 Tenn. 540, 322 S.W.2d 226, 230 (1959); Continental Insurance Co. v. Weinstein, 37 Tenn. App. 596, 267 S.W.2d 521, 524-525 (1953). Waste Management should therefore be allowed to assert its counterclaim to setoff any liability which it may incur as a result of the debtor's state court action.

Audubon's recourse is against Paul, not Allstate and Farr. See Continental Ins. Co. v. Weinstein, 37 Tenn. App. 596, 267 S.W.2d 521 (1953); American Automobile Ins. Co. v. Clark, 122 Kan. 445, 252 P. 215 (1927); Home Ins. Co. v. Bernstein, 172 Misc. 763, 16 N.Y.S.2d 45 (1939); Allstate Ins. Co. v. Dye, 113 Ohio App. 90, 17 Ohio Ops.2d 85. 85 Ohio Labs. 17, 170 N.E.2d 862 (1960); Universal Ins. Co. v. Millside Farms, Inc., 119 N.J.L. 534, 197 A. 648 (1938); Illinois Auto Ins. Exch. v. Braun, 280 Pa. 550, 124 A. 691, 36 A.L.R. 1262 (1924); Melick v. Stanley, 174 N.J. Super. 271, 416 A.2d 415 (1980), affirmed 181 N.J. Super. 128, 436 A.2d 954 (1981). The compromise settlement by Allstate and Farr with Paul "without knowledge or notice that the latter had assigned its claim" to Audubon bars this suit by Audubon. Jackson, Etc. v. Shreveport Producing Ref. Corp., 6 La.App. 216 at 218 (1927).

Vaccari (1976), ___ Minn. ___, 245 N.W.2d 844; General Exchange Insurance Corp. v. Young (1948), 357 Mo. 1099, 212 S.W.2d 396; Omaha Republican Valley Ry. Co. v. Granite State Fire Insurance Co. (1898), 53 Neb. 514, 73 N.W. 950; Davenport v. State Farm Mutual Automobile Insurance Co. (1965), 81 Nev. 361, 404 P.2d 10; Fire Association v. Wells (1915), 84 N.J. Eq. 484, 94 A. 619; Ocean Accident Guarantee Corp. v. Hooker Electro-chemical Co. (1925), 240 N.Y. 37, 147 N.E. 351; Nationwide Mutual Insurance Co. v. Canada Dry Bottling Co. (1966), 268 N.C. 503, 151 S.E.2d 14; Motorists Mutual Insurance Co. v. Gerson (1960), 113 Ohio App. 321, 177 N.E.2d 790; Aetna Casualty Surety Co. v. Associates Transports, Inc. (Okla. 1973), 512 P.2d 137; United Pacific Insurance Co. v. Schetky Equipment Co. (1959), 217 Ore. 422, 342 P.2d 766; Hospital Service Corp. v. Pennsylvania Insurance Co. (1967), 101 R.I. 708, 227 A.2d 105; Calvert Fire Insurance Co. v. James (1960), 236 S.C. 431, 114 S.E.2d 832; Continental Ins. Co. v. Weinstein (1953), 37 Tenn. App. 596, 267 S.W.2d 521; Wichita City Lines, Inc. v. Puckett (1956), 156 Tex. 456, 295 S.W.2d 894. The difficulty with the Andersen rule, in our opinion, is that its application in the circumstances here is fundamentally unfair to both the insured and his insurer.

His conduct, however, conclusively establishes it as a fact that he delivered this check as a settlement in full of the disputed claim, and understood Anderson to have so accepted it. This is established by the fact that he sent Grubb a photostatic copy of this voucher with the statement, in substance, that "he had gotten rid of Mr. Anderson". The latest ruling of our Courts on the question is found in Continental Ins. Co. v. Weinstein, an opinion rendered by the Court of Appeals in 1953, reported in 37 Tenn. App. 596, 267 S.W.2d 521. Certiorari was denied by this Court. It was held in that case that the acceptance of a check upon which is written "`in full settlement of all claims'" with full knowledge that the check was so sent amounts to a release of the disputed indebtedness. In so holding the Court of Appeals quoted from the unreported case of Pike v. American Tea Coffee Company as follows:

When a debtor clearly indicates that a check is offered upon a condition of satisfaction of a debt, the creditor's endorsement and collection on the check generally operate as an accord and satisfaction. E.g., Cole v. Henderson, 61 Tenn.App. 390, 454 S.W.2d 374 (1969), and Continental Insurance Co. v. Weinstein, 37 Tenn.App. 596, 267 S.W.2d 521 (1953).The party asserting the affirmative defense of accord and satisfaction has the burden of proving the defense by a preponderance of the evidence.

(quoting 1 C.J. Accord and Satisfaction §§ 1 and 16 (1914)). When a debtor clearly indicates that a check is offered upon a condition of satisfaction of a debt, the creditor's endorsement and collection on the check generally operate as an accord and satisfaction. E.g., Cole v. Henderson, 61 Tenn. App. 390, 454 S.W.2d 374 (1969), and Continental Insurance Co. v. Weinstein, 37 Tenn. App. 596, 267 S.W.2d 521 (1953).The party asserting the affirmative defense of accord and satisfaction has the burden of proving the defense by a preponderance of the evidence.

1947), aff'd, 357 Mo. 1099, 212 S.W.2d 396 (1948); Omaha R.V. Ry. v. Granite State Fire Ins. Co., 53 Neb. 514, 73 N.W. 950 (1898); Davenport v. State Farm Mut. Auto. Ins. Co., 81 Nev. 361, 404 P.2d 10 (1965); Melick v. Stanley, 174 N.J. Super. 271, 416 A.2d 415 (1980), aff'd, 181 N.J. Super. 128, 436 A.2d 954 (1981); United States Fid. Guar. Co. v. Raton Natural Gas Co., 86 N.M. 160, 521 P.2d 122 (1974); Neuss, Hesslein Co. v. 380 Canal St. Realty Corp., 9 Misc.2d 903, 168 N.Y.S.2d 579 (1957); Nationwide Mut. Ins. Co. v. Canada Dry Bottling Co., 268 N.C. 503, 151 S.E.2d 14 (1966); Hartford Accident Indem. Co. v. Elliott, 32 Ohio App.2d 281, 290 N.E.2d 919 (1972); Aetna Cas. Sur. Co. v. Associates Transps., Inc., 512 P.2d 137 (Okla. 1973); United Pac. Ins. Co. v. Schetky Equip. Co., 217 Or. 422, 342 P.2d 766 (1959); Hospital Serv. Corp. v. Pennsylvania Ins. Co., 101 R.I. 708, 227 A.2d 105 (1967); Calvert Fire Ins. Co. v. James, 236 S.C. 431, 114 S.E.2d 832, 92 A.L.R.2d 97 (1960); Continental Ins. Co. v. Weinstein, 37 Tenn. App. 596, 267 S.W.2d 521 (1953); Landsdowne-Moody Co. v. St. Clair, 613 S.W.2d 792 (Tex. Civ. App. 1981); State Farm Mut. Ins. Co. v. Farmers Ins. Exch., 27 Utah 2d 166, 493 P.2d 1002 (1972); Cushman Rankin Co. v. Boston M.R.R., 82 Vt. 390, 73 A. 1073 (1909); see also 16 G. Couch, Insurance § 61:201 (2d ed. 1983); 6A J. Appleman, Insurance § 4092, at 246 (1972); 44 Am.Jur.2d Insurance § 1811 (1982); Annot., 92 A.L.R.2d 102 (1963); cf. Prince v. American Indem. Co., 431 So.2d 270 (Fla. Ct. App. 1983) (settlement between insured and tortfeasor is assumed to not include sums for medical expenses paid by insurer); Preferred Risk Mut. Ins. Co. v. Courtney, 393 So.2d 1328 (Miss.

(quoting 1 C.J. Accord and Satisfaction §§ 1 and 16 (1914)). When a debtor clearly indicates that a check is offered upon a condition of satisfaction of a debt, the creditor's endorsement and collection on the check generally operate as an accord and satisfaction. E.g., Cole v. Henderson, 61 Tenn. App. 390, 454 S.W.2d 374 (1969), and Continental Insurance Co. v. Weinstein, 37 Tenn. App. 596, 267 S.W.2d 521 (1953). The party asserting the affirmative defense of accord and satisfaction has the burden of proving the defense by a preponderance of the evidence.