Beck v. Rosenfeld

Defendants owed plaintiffs for goods sold and delivered. The uncontradicted proof shows that there was a genuine dispute as to the amount due from defendants to plaintiffs. On December 17, 1923, defendants sent to plaintiffs a check for $960.45, being $329.28 less than the amount claimed by plaintiffs to be due, on the face of which check was the indorsement: “ This check is in full payment of the following. If incorrect please return. ' Endorsement is in full acknowledgment.” The ten items enumerated on the check represent the only dispute in the case, which is as to the agreed price of the goods specifically itemized on the. face of the check. On receipt of this check plaintiffs deposited the same in their bank, received credit therefor, and thereafter, on the twentieth of December, plaintiffs notified defendants that they only accepted the check as payment on account. Defendants denied receiving the notice of December twentieth; but even assuming that the notice was sent and received, it being after plaintiffs had deposited and received the benefit of defendants’ check, the notice was entirely ineffectual. The record establishes a complete accord and satisfaction.

Judgment reversed, with thirty dollars costs, and complaint dismissed, with costs.

Guy and Mullan, JJ., concur.

I fail to find evidence to support the proposition that the claim litigated was unliquidated or that there was a real or honest dispute to merit the holding of accord and satisfaction. I feel, therefore, that affirmance should follow.