IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. CROIX: CHRISTIANSTED



FRANK A. GARBATY,

Plaintiff, CIVIL NO. 582/1983

ve ACTION FOR DEBT



ROBERT CARPENTER and

HUMTY DUMTY, INC.,



Defendants.



Set ere meer ae Sere Set Senet ire Ninel eet Set



G. LUZ A. JAMES, ESQ.

46-47 Company Street

Christiansted, St. Croix

U. S. Virgin Islands 00820

Attorney for Plaintiff



RICHARD D. KEELING, ESQ.

No. 6 Company Street

Christiansted, St. Croix

U. S. Virgin Islands 00820

Attorney for Defendants



SILVERLIGHT, J.



MEMORANDUM OPINION

November 25, 1983



In this action for debt to recover on a promissory note

Plaintiff has moved for summary judgment.



A summary judgment is proper and shall be rendered if the

pleadings, depositions, answers to interrogatories and

admissions on file, together with affidavits, if any, show

that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of



law. FED. R. CIV. PB. 56(c).

Garbaty v. Carpenter/Humty Dumty, Inc.

CIVIL NO. 582/1983

Page 2



Defendant has in his answer filed an affirmative defense

alleging Accord and Satisfaction on the promissory note. i/

An accord and satisfaction is an offer in full satisfaction of



an obligation. See generally, 1 AM. JUR. Accord and



Satisfaction §1 et. seq. (1962). Whether an Accord and

Satisfaction is reached usually presents a question of fact.



Simpson v. Norwesco, Inc., 442 F.Supp. 1102 (S.D.S.D., 1977),



aff'd 583 F.2d 1007 (8th Cir. 1978). Proie Brothers, Inc. v.



Proie, 301 F.Supp. 680 (W.D.Pa., 1968) aff'd 414 F.2d 1365

(3rd Cir. 1969).



Defendant has raised an issue of fact which precludes a

grant of summary judgment. It is therefore,



ORDERED, ADJUDGED and DECREED that plaintiff's Motion for



Summary Judgment is hereby DENIED.



ENTER:



fp SN

TRWIN J. SILVERLIGHT, “Judge



DATED: November 25, 1983.



i/ This defense is reasserted in an affidavit in

support of the motion and remains uncontradicted.