of the undertaking and the understanding of the parties that the principal is to be in control of the undertaking.'" Scott v. Purcell, 490 Pa. 109, 117, 415 A.2d 56, 60 (1980) (quoting Restatement (Second) of Agency, § 1(1) comment b (1958)). It is not necessary that the parties explicitly state their intention to create an agency relationship, but their intention must be clear from their conduct. Brock v. Real Estate-Land Title & Trust Co., 318 Pa. 49, 178 A. 146 (1935). Accord Falconer v. Mazess, 403 Pa. 165, 168 A.2d 558 (1961). Thus, the agent must consent to act primarily for the benefit of the principal, subject to the principal's control.
Even if Goodway is correct in arguing that accord and satisfaction does not apply to an agency relationship, Goodway has brought forth no evidence whatsoever to support the existence of such a relationship.
The burden of establishing the existence of an agency relationship rests on the party making the assertion. Scott v. Purcell, 490 Pa. 109, 117 n.8, 415 A.2d 56, 60 n.8, (1980); Girard Trust Bank v. Sweeney, 426 Pa. 324, 329, 231 A.2d 407, 410 (1967).
Moreover, the record shows that Goodway was a creditor since it had acquired a right to payment from Faulkner. A creditor can be broadly defined as one who has the legal right to require the performance of a legal obligation or contract, or who has a legal right to damages growing out of contract or tort. Blacks Law Dictionary 332 (rev. 5th ed. 1979). See also Merwine v. Mt. Pocono Light & Improvement Co., 304 Pa. 517, 523, 156 A. 150 (1931) (a creditor is one "having a cause of action capable of adjustment and liquidation upon a trial"); cf. Uniform Fraudulent Conveyance Act, 39 Pa. Stat. Ann. § 351 (Purdon 1954) (a creditor is "a person having any claim, whether matured or unmatured, liquidated or unliquidated, absolute, fixed, or contingent"). Goodway, as a creditor, was owed a disputed amount which was capable of resolution through an accord and satisfaction.
Goodway also maintains that the accord and satisfaction is invalid because Goodway accepted Faulkner's payment under economic duress and coercion. Even assuming duress is a ground for invalidating an accord and satisfaction, Law v. Mackie, 373 Pa. 212, 229, 95 A.2d 656, 664 (1953), Goodway advances no evidence of any duress.
The Pennsylvania Supreme Court has defined duress in contractual disputes as "that degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness. . . . Moreover, [without] threats of actual bodily harm there can be no duress where the contracting party [can] consult with counsel." Carrier v. William Penn Broadcasting Co., 426 Pa. 427, 431, 233 A.2d 519, 521 (1967) (quoting Smith v. Lenchner, 204 Pa. Super. Ct. 500, 504, 205 A.2d 626, 628 (1964)).
A recent decision of this court, Levin v. Garfinkle, 492 F. Supp. 781 (E.D. Pa. 1980), aff'd, 667 F.2d 381 (3d Cir. 1981), also provides guidance as to the elements necessary to establish duress in a commercial setting. In Levin, the plaintiff attempted to avoid a contract, contending that he had signed it involuntarily and under economic duress. In evaluating plaintiff's claim, the court stated, "in order to establish duress, it is necessary to prove that (1) serious economic injury was imminent, (2) exerting such pressure that the party involuntarily executed an agreement leading to economic loss, and (3) there was no immediate legal remedy available as an alternative to executing the agreement." Levin, 492 F. Supp. at 807.
Faulkner's uncontradicted affidavit states that Goodway gave no notice that it was accepting the check under protest or duress. Goodway now claims that a condition of economic duress and coercion existed since it had already paid for the total cost of the project and Faulkner's invoice represented one quarter of this amount. As a matter of law, this is not sufficient to establish duress. Goodway is simply arguing that it was forced to make a choice between accepting a lesser amount or litigating to obtain the full amount claimed. These facts, far from establishing duress within the definitions in Carrier and Garfinkle, only illustrate those anticipated elements of commercial compulsion present in any arms-length transaction. This is insufficient as a matter of law to vitiate the effect of the accord and satisfaction which is clearly present from the undisputed facts.
Faulkner's conditional tender of payment of an unliquidated debt presented Goodway with two options, either to accept the payment, which would constitute assent to Faulkner's terms, or to reject the check and bring suit for the full amount that Goodway alleged was due. In choosing to accept and retain the payment, Goodway manifested accord and the debt was satisfied. The undisputed facts do not support Goodway's claim that Faulkner was acting as Goodway's agent, nor that Goodway acted under duress in accepting payment. Thus, I find as a matter of law that there was an accord and satisfaction and that Faulkner is entitled to summary judgment.
An appropriate order follows.
AND NOW, this 30th day of July, 1982, it is hereby ORDERED that defendants' motion for summary judgment is GRANTED. JUDGMENT is entered in favor of defendant and against plaintiff.