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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 389 September Term, 2000

MILES X. WICKMAN

v. MICHAEL A. KANE

Hollander, Eyler, Deborah S. Smith, Marvin H. (Ret'd, Specially Assigned), JJ.

Opinion by Eyler, J.

Filed: February 5, 2001

Miles X. Wickman, appellant, challenges an order of the Circuit Court for Montgomery County granting summary judgment in favor of Michael A. Kane, appellee, in Wickman's suit on a

promissory note.

Wickman presents the following question for

review, which we have rephrased: Did the circuit court err in ruling that his acceptance of a partial payment of the total amount due on the promissory note constituted an accord and satisfaction? For the following reasons, we shall reverse the judgment of the circuit court.

FACTS AND PROCEEDINGS
On June 2, 1989, Michael A. Kane and Randy C. Stewart, as makers, executed a promissory note for $225,000, with interest at 11%, amortized over a thirty year period, and payable to Miles X. Wickman. The note called for monthly payments of

$2,143, with the balance due on June 2, 1994.

The note further

contained an acceleration clause providing that, in the event of a default on any of the obligation, in whole or in part, the balance holder. would become due and payable at the option of the

It also gave the makers the right to prepay the unpaid

balance, in whole or in part, without penalty. After the balance on the note became due, Kane and Stewart continued to make monthly payments on it. On November 12, 1995, That

Kane wrote a check for $111,456.54, payable to Wickman.

amount equaled one-half of the outstanding balance on the note, plus interest. On the memorandum line of his check, Kane wrote: Kane mailed the check to Wickman on

"payment in full of loan." November 14, 1995.

He enclosed a cover letter in which he said:

As you know, in June 1989, you loaned to Randy and I, on a several basis (meaning we each were responsible for one half of the loan) the amount of $225,000. The note was due in June of 1994 and was not formally extended although payments were continued at the same interest rate of 11%. Please find enclosed payment for my one half of the above note together with interest through the above date. The remaining principle [sic] balance of my share is $108,186. The interest is $3270.54 for a total of $111,456.54. Since Randy is still paying you on a monthly basis, it is impossible for you to return the note marked canceled. Accordingly, would you please sign the bottom of this letter and return it to me so that I may fulfill the terms of the refinance of my portion of the note. The purpose is to acknowledge that I no longer owe you any money and that the above referenced note is paid in full. Please call with questions. The following statement, with a signature line for Wickman,

appeared at the bottom of Kane's letter: The undersigned hereby acknowledges receipt of $111,456.54 which represents complete and full payment of all principal and interest of Michael A. Kane's share of the note between Miles X. Wickman (as lender) and Michael A. Kane and Randy C. Stewart (as makers) originally dated June 2, 1989. Wickman did not negotiate the check or sign the statement at the bottom of Kane's letter. -2On December 27, 1995, Kane and

Wickman had a telephone conversation, which Kane memorialized as follows in a letter to Wickman, dated January 10, 1996: In connection with our telephone conversation of December 27, 1995, I once again wish to set forth my position as clearly as possible to avoid any further misunderstanding. The note Randy and I signed (dated June 2, 1989) which became due on June 2, 1994, was signed on a "several" basis, meaning that Randy owed half and I owed half. It was always paid out of accounts owned one half by Randy and one half by me. It was never my intention that I would be responsible for Randy's half or that Randy would be responsible for my half. The documents that Randy and I signed in connection with our decision to part company reflect this intent and indicate that I was to pay my half of the note to you and that Randy was to make arrangements with you to pay his one half of the note. I have requested that Randy finalize this aspect of our agreement with you on more than one occasion. It is my understanding that unless a note states that an obligation is "joint and several", then it is presumed to be "several". The note I signed does not indicate that the liability is joint and several. I have tendered payment of my one half share of the note together with interest with my letter to you of November 14, 1995. It is my understanding that you have yet to deposit the check. I wish to be certain you understand that any interest on my one half share ceased when I tendered payment to you and that I no longer owe you any money. Thereafter, Wickman negotiated the November 12, 1995 check. Before doing so, however, he changed the memorandum on it to read "payment in full of

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