Legal Question in Administrative Law in California

Primary Right and restrictive payment of judgement

I sued contractor to recover excess deposit and won judgment.

I did this while waiting for the CSLB, contractor, Mfg, and

labs to conclude if there was poor workmanship (PW). Contractor mailed a check in the amount of the

judgment but wrote �Refund � Settlement � In � Full� on check.

Concerned he tried to tie payment to both excess deposit

judgment and PW issue I sent demand letter requiring

contractor authorize me to strike the line. He refused.

I now understand I had right to strike the line and satisfy judgment if I hadn�t sent the demand letter. But I believe the demand letter complicated my authority and rights. What do I fill out to bring the contractor back to court and have judge rule what to do w/check?

It is my determination the small claims action for excess deposit is a different Primary Right than the PW issue, even though they are in regard to the same job. It should be clear the debtor has responsibity to pay only the judgment and has no right to attempt to link that payment with anything else. The debtor would have to assert that concept during the PW litigation.


Asked on 11/15/06, 10:07 pm

1 Answer from Attorneys
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Primary Right and restrictive payment of judgement

The law respecting accord and satisfaction by notation on a check is codified at Civil Code section 1526. I suggest you look it up and form an opinion based on your knowledge of the facts of your particular situation. I'm not at all sure whether cashing the check, with or without striking out the paid-in-full language, would cut off your right to a further recovery, and it would probably require some research to give you a reliable answer.

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Answered on 11/16/06, 2:09 pm


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