|
In January 2005 I did some work for a company and have been given the
run-around on getting paid. Anywho, last week I filed papers in small
claims court and have a court date in early August. (Much more detail
to this whole matter over at my blog, see
http://scottonwriting.net/sowBlog/SmallClaimsExperience.htm)
A couple days after I filed, the company sent me a 50% partial payment.
My question is this: should I cash the check or does doing so imply
that the company and I have reached some sort of agreement on payment?
On my blog I have gotten various bits of (contradictory) advice:
"Cash the check, if you can, an[d] continue on with your lawsuit. Small
claims is very lenient on procedure. If you originally filed for $3k
and they now only owe you $1,500, just tell the judge that at the start
of the trial."
vs.
"I'm not sure though you have any basis or value in doing both taking
the $ and going to court - your court case is simply on non payment for
services - if paid for prior to the court date there is no issue of
merit to discuss."
Any advice from this group? If I cash the check does that imply that I
cannot proceed with the small claims court hearing?
Thanks
|
| |
| |
On Fri, 08 Jul 2005 13:56:47 -0400, "Scott Mitchell" wrote:
In January 2005 I did some work for a company and have been given the
run-around on getting paid... Anywho, last week I filed papers in small
claims court and... the company sent me a 50% partial payment.
My question is this: should I cash the check or does doing so imply
that the company and I have reached some sort of agreement on payment?
I have not dealt with this area of law for a long time, so I'm
answering from memory. I will defer to anyone who has better
credentials and a different answer!
There is a principle called "accord and satisfaction" by which a
debtor may discharge a debt that is subject to a _bona fide_ dispute
by making an offer of payment which it expressly states will discharge
the entire debt if accepted.
Is there anything in the history of the relationship to indicate that
there is a bona fide dispute about how much is owed to you, or about
whether you have done everything required by your agreement?
Has the company written anything on the check, in a letter
accompanying the check, etc., to indicate the existence of a bona fide
dispute, and an intention to settle it by offering this amount in
payment?
If you must answer either question "yes," you would be prudent to NOT
cash the check.
If you can answer both questions "no," cashing the check should be
pretty safe. Holding onto it would, of course, be safer -- unless the
company decides to stop payment! You get to pick your risk.
(I'm assuming you have a written agreement which states the amount due
to you, or states facts from which the amount may be calculated. If
you don't, all bets are off! The company can claim the agreement said
whatever it wants, and you will probably have trouble proving them
wrong.)
If you do cash the check, keep a photocopy. And take it with you to
court.
My email address is LLM041103 at earthlink dot net.
|
| |
| |
Scott Mitchell wrote:
In January 2005 I did some work for a company and have been given the
run-around on getting paid. Anywho, last week I filed papers in small
claims court and have a court date in early August. (Much more detail
to this whole matter over at my blog, see
http://scottonwriting.net/sowBlog/SmallClaimsExperience.htm)
A couple days after I filed, the company sent me a 50% partial payment.
My question is this: should I cash the check or does doing so imply
that the company and I have reached some sort of agreement on payment?
On my blog I have gotten various bits of (contradictory) advice:
A quick wrap-up: inbetween filing the small claims court paperwork and
the actual courtdate, the company paid its balance due in full.
Thanks to those who took the time to respond to my question, both here
on the newsgroup and 'offline' as well.
|
| |
| |
|
