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of all security deposits made said payee on a
certain commercial lease dated April 8th, 1979.
G l s s L ~ ecrossed
c
-bKkem out the above endorsement, wrote "Endorsement
Rejected" thereunder, endorsed the check and then negotiated
the same.
On February 3, 1984, Geissler commenced this action for
return of the remainder of his security deposit. In his
answer Nelson raised the affirmative defense of accord and
satisfaction. Trial was held without a jury on April 26,
1985. The District Court found that damages were done to the
business premises entitling Nelson to a set-off against the
security deposit in the sum of $1,196.00. The District
Court, however, also found that Nelson was not entitled to
his second claimed set-off in the sum of $3,927.00 because on
October 1, 1983, Nelson entered an agreement with Simpson
Motor Cars Limited for the lease of the same premises
previously leased to Geissler and received compensation in
the same amount being received from Geissler. In other
words, the District Court determined that no damages were
suffered by Nelson as a result of Geissler's alleged failure
to make payments upon the purchase price claimed as a
set-off.
Nelson raises four issues for our review:
1. Whether the District Court erred in not finding that
the previous action between the parties was a bar, either by
res judicata or estoppel, or both, to the subsequent claim
herein for return of the security deposit;
2. Whether the District Court erred in not finding that
the restrictive endorsement on the check that was sent by
Nelson to Geissler constituted an accord and satisfaction
when Geissler endorsed and cashed the check;
3. Whether the District Court erred in failing to make
a finding as to whether or not $1,309.00 per month was for
the purchase of the business or was for other consideration;
and,
4. Whether the District Court erred in finding that any
of the security deposit monies were due and owing from Nelson
to Geissler.
Nelson first contends that Geissler's present action for
the return of his security deposit given to secure
performance under the parties lease is barred by res
judicata. The record in Cause No. DV-83-537 indicates that
although the previous action did indeed refer to the
existence of the lease between the parties, the only claims
for relief in that action by Nelson were: 1) the payment of
back rent; 2) a demand for the retaking of possession of
certain personal property pledged as security for the payment