Under Colorado law, the execution of an executory accord does not discharge the original debt unless there is specific wording to that effect in the "new" contract. See Hinkle v. Basic Chemical Corp., 163 Colo. 408, 431 P.2d 14, 16 (1967). Dime Box's legal theory is undercut by the facts.
Incomplete performance or nonperformance of an accord does not discharge the original contractual obligations. See, e.g., id. 610 P.2d at 619; Walker v. Rocky Mountain Recreation Corp., 29 Utah 2d 274, 508 P.2d 538, 542 (1973); Hinkle v. Basic Chem. Corp., 163 Colo. 408, 431 P.2d 14, 16 (1967); A. Corbin, Corbin on Contracts ยง 1274 (1962); Restatement (Second) of Contracts ยง 281 (1981) [hereinafter Restatement]. We do not understand Oklahoma law to be to the contrary.
Because both Ms. Mischek and Ms. Christensen accepted payment from State Farm to settle their UIM claims, the doctrine of accord and satisfaction bars them from seeking additional UIM benefits that they allege were unlawfully withheld. See Hinkle v. Basic Chemical Corp., 431 P.2d 14, 16 (Colo. 1967) ("[A]ccord and satisfaction can be pleaded in bar of a suit upon the old contract."). State Farm is therefore entitled to summary judgment on plaintiffs' claims for breach of contract and declaratory relief.
Because both Ms. Mischek and Ms. Christensen accepted payment from State Farm to settle their UIM claims, the doctrine of accord and satisfaction bars them from seeking additional UIM benefits that they allege were unlawfully withheld. See Hinkle v. Basic Chemical Corp., 431 P.2d 14, 16 (Colo. 1967) ("[A]ccord and satisfaction can be pleaded in bar of a suit upon the old contract."). State Farm is therefore entitled to summary judgment on plaintiffs' claims for breach of contract and declaratory relief.
This is because an accord without its satisfaction does not void the underlying note. See Hinkle v. Basic Chemical Corp., 163 Colo. 408, 431 P.2d 14, 16 (1967); 15 S. Williston, A Treatise on the Law of Contracts ยง 1842 (3d ed. 1972). Thus, there remains an "interest" in the "asset" for RTC acquisition.
See Owens v. Hunter, 368 P.2d 753 (Ariz. 1962); Silvers v. Grossman, 192 P. 534 (Cal. 1920); Hinkle v. Basic Chem. Corp., 431 P.2d 14 (Colo. 1967); Wilson v. Bogert, 347 P.2d 341 (Idaho 1959); Daly v. Chicago N.W. Ry. Co., 114 N.W.2d 682 (Minn. 1962); Ladd v. General Ins. Co., 387 P.2d 572 (Ore. 1963); Nash v. Atlantic White Tower System, Inc., 170 A.2d 341 (Pa. 1961); Stratton v. West States Constr., 440 P.2d 117 (Utah 1968); Annot., 94 A.L.R.2d 504 (1964); 6 A. Corbin, Contracts ยง 1275 (1962).
A party asserting an accord and satisfaction defense must show that (1) after entering into the initial contract, the parties entered into a later contract; (2) the parties knew or should reasonably have known that the later contract cancelled or changed their remaining rights and duties under the original contract; and (3) the party asserting the defense fully performed the duties it agreed to perform under the later contract. Caldwell v. Armstrong , 642 P.2d 47, 49 (Colo. App. 1981) ; see also Hinkle v. Basic Chem. Corp. , 163 Colo. 408, 412, 431 P.2d 14, 16 (1967) (to establish an accord and satisfaction, the evidence must show that the new agreement was expressly accepted as a satisfaction and that the parties intended performance of the new agreement as a condition of satisfying the prior obligation); CJI-Civ. 30:28 (2021). Additionally, for an accord and satisfaction to be effective, both parties must know all relevant facts.
An accord without a satisfaction does not constitute a defense. Hinkle v. Basic Chemical Corp., 163 Colo. 408, 431 P.2d 14 (1967). III. Exclusivity of Remedy
We disagree. An agreement to modify an existing contract, i.e., an executory accord, does not extinguish the original obligation, but suspends performance of that obligation until the accord is breached or satisfied. Hinkle v. Basic Chemical Corp., 163 Colo. 408, 431 P.2d 14 (1967). See American Textile Machine Corp. v. United States, 220 F.2d 584 (6th Cir. 1955); see also Globe Express Co. v. Taylor, 61 Colo. 430, 158 P. 717 (1916). If the accord is satisfied, the original obligation is discharged under the doctrine of accord and satisfaction. Hinkle v. Basic Chemical Corp., supra. If the accord is breached, however, the promisee may sue under either the original obligation or the accord.
See also Owens v. Hunter, 368 P.2d 753 (Ariz. 1962); Hinkle v. Basic Chemical Corp., 163 Colo. 408, 431 P.2d 14 (1967); Goggins v. Bookout, 141 Mont. 449, 378 P.2d 212 (1963); Chopping v. First National Bank of Lander, 419 P.2d 710, (Wyo. 1966) cert. denied 387 U.S. 935, 87 S.Ct. 2062, 18 L.Ed.2d 998; Restatement (Second) of Contracts, ยง 281 (1979). Next we turn to the owner's argument that the lien was invalid because it was for an excessive amount and because it was tied to a non-existent 15% fee agreement.