Chamberlain Medicine Co. v. Elk Drug Co.

The plaintiff might have claimed that the defendant was not entitled to the discount on the purchase price of the merchandise because payment had not been made within six months, but such claim was waived by the plaintiff. It allowed all the credits claimed by the defendant except the sum of $430.34, being the amount of the returned merchandise. There was no dispute that this amount and also the amount of the check, aggregating $546.'75; was due from the defendant to the plaintiff. The case, however, is not within the principle which applies where a debtor owing a conceded amount seeks to make payment by check for a less amount. The rules in reference to an accord and satisfaction where a debtor seeks to liquidate a debt by the payment of a less amount or in reference to the ordinary case of an account stated have no application here. The defendant, conceding an indebtedness of $546./T5, sought to liquidate the same by returning property of a definite and fixed value for a portion of such indebtedness and by giving a check for the *257whole of the balance thereof. This could only be done by the consent of the plaintiff that such property be returned. But such consent may be inferred from acquiescence or prolonged silence. The plaintiff was informed that the defendant had returned the property in question. It was also informed that the check for §116.41 was “ intended to balance in full ” the account. It accepted said check and gave to the defendant all other credits claimed except the credit for the goods returned. It was its duty promptly and within a reasonable time to inform the defendant of its refusal to accept such goods so that the defendant might take such steps as might be necessary to secure the return thereof to itself or otherwise protect itself from loss or damage. "What might have been the effect of retaining and using the check if the plaintiff had promptly notified the defendant of its refusal to accept the goods is not a question which is here involved. The trial court has found that the length of time during which the plaintiff omitted to make objection was unreasonable. This conclusion of the trial court was not an improper inference under the circumstances of this case and concludes the plaintiff on this appeal. The plaintiff acquiesced for so long a time in the return of the merchandise that it must be deemed to have assented thereto.

" The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.