238 Pa. 409 | Pa. | 1913
Opinion by
This ease was commenced by a bill in equity asking for discovery. The learned court below states, “That is the only averment of the plaintiff’s bill which gave equity jurisdiction, and had the defendant at the close of the plaintiff’s case asked the court to dismiss the bill for want of jurisdiction it would have been compelled to do so; but the question of jurisdiction was not then nor has it since been raised. By the terms of the Act of June 7, 1907, P. L. 440, there being no equitable relief to which the plaintiff is entitled,......the case becomes an action at law, triable by'the sitting judge without a jury......, and this is merely an action to recover the balance due on a contract.”
From the findings upon the record it appears that prior to 1895, George W. McClure (the defendant) and Carl Amsler were business partners; that upon the death of the latter in that year McClure entered into a written agreement with the executors of Amsler’s estate whereby he was given the right to use certain
After finding the foregoing facts the court below concluded as a matter of law that the plaintiff was “entitled to recover from defendant $75.00 on each of the stoves sold, erected or licensed by him during the six years
The appellant contends that the evidence shows an accord and satisfaction and that the court below fell into error when it decided to the contrary. The fact that a creditor receives less than the amount claimed, with knowledge that the debtor denies indebtedness beyond the payment made, does not necessarily constitute an accord and satisfaction, and under the findings we are not impressed with the contention that error was committed in holding that the plaintiff’s acceptance of the defendant’s checks “would not bar her recovery of the additional amount.” The defendant further contends that for a period of fourteen years the plaintiff acquiesced in the reduction of the royalty and thereby debarred herself from claiming more. The answer to this is that the court below has found that there was no acquiescence; and we see no reason, under the evidence and the applicable rules of practice, for disturbing that finding. Nor do we see any reason to revise the finding that the reduction in the royalty was simply a temporary one that ended in 1899. After reviewing the whole record and considering all the contentions urged by the appellant, we feel that the learned court below correctly determined this case; when the recovery was restricted to the six years immediately preceding the filing of the bill the defendant received every consideration to which he was entitled under the facts and the law.
The first two assignments of error are defective and were not pressed by the appellant; they are dismissed and the others are overruled. The judgment is affirmed.