Meyers v. Hirsh

Plaintiff sues for goods sold and delivered. The defenses are payment and accord and satisfaction. The parties hereto had numerous transactions involving the sale of braids and defendant was entitled to certain credits and claimed a discount upon certain terms. The dispute actually centered at the trial upon three items: First, the question of the discount; secondly, the item of $102 for goods claimed to have been defective and returned to the plaintiff, and thirdly, another item for $75.75 which defendant claims was not due when the action was begun.

Defendant’s checks contained a statement of the amounts which they were intended to pay and showed the credits and discounts which defendant claimed. These checks contained the statement that they were “ in payment of the items as per statement following. Endorsement of payee will constitute a receipt in full.” These checks, given in accordance with defendant’s theory of the transactions, were offered in evidence and totalled an amount sufficient to establish the defense of payment. In addition to that fact defendant’s Exhibit F was a check given on the 20th of January, 1925, and was the last payment made. At the time that this *262check was given there was a dispute between the parties as to the one hundred and two dollars credit and the seventy-five dollars transaction and also the question of discounts. The fact of this dispute appears without contradiction from the plaintiff’s own testimony. After considerable discussion, in which defendant claimed an allowance of fifty dollars, and after plaintiff had refused to make any allowance, defendant tendered a check of one hundred and forty-one dollars and fifty-two cents which contained the same notations as the other checks, including a discount of fourteen dollars and forty-eight cents and a credit of twenty-five dollars. The acceptance of this check under the circumstances constituted an accord and satisfaction. Moreover, it also serves as documentary confirmation of defendant’s claim of payment and indicates that defendant’s story relative to the various credits and discounts was correct.

Judgment reversed and a new trial ordered, with thirty dollars costs to the appellant to abide the event.

All concur; present, Bijur, McGoldrick and Levy, JJ.