Epitomized Opinion

First Publication of this Opinion

This was an action by the Union Wholesale Lumber Co. against the Faust Lumber Co. to recover the' sum of $773.60. The former company had been doing business with the latter company for a considerable length of time when, in November, 1918, the Wholesale Company placed an order with the Faust Lumber Co. for a car load of lumber consigned to a firm in Connecticut. Through some mistake the Faust Company duplicated the order, and sent two cars. At the time the Wholesale Lumber Company had advanced considerable money to the Faust Company and the Faust Company deducted from these advancements the amount of the two cars. Later the Faust Company sent the Wholesale Co. a cheek for $793.80. Later on they sent another check for $130.00, together with a statement marked “check for $130.00 is enclosed which balances account with you.” These checks were retained by the Wholesale Comlpany and considerable correspondence passed between the parties in regard to the duplication of the order in question. Several months later the Wholesale Co. brought an action against the Faust Co. to recover the amount deducted for the additional car load of lumber. As the judgment was rendered for the plaintiff, the defendant prosecuted error. In sustaining the judgment of the lower court, the Court of Appeals held: «

1. There was no accord and satisfaction as a part of the account stated was not in dispute and about which there was no controversy, i. e., the Faust Company could not use .an undisputed claim and the payment thereof to bring about a settlement of a disputed claim, and thereby require the acceptance of the terms proposed by it.