| N.Y. App. Div. | Jun 15, 1906
The plaintiff brought this action to recover the balance of $133 alleged to be due the plaintiff on the sale to the defendant of one fifty-horse power, two-phase sixty cycle electric motor, sold and delivered to the defendant for the sum of $400. The answer made a general denial, alleged fraud, breach of contract, payment and accord and satisfaction, but the issue tried and determined was that of accord and satisfaction. The plaintiff introduced evidence showing the sale of the motor to the defendant at the agreed price of $400. It appears that there was some negotiation in reference to an auto-starter, and that. the same was delivered to the defendant at the same time with the motor, and the defendant’s theory is that this auto-starter was an essential element iof the contract of sale, and the same being found to be out of repair to such an extent as to be practically of. no value, the defendant attempted to withhold a sum sufficient to purchase a new auto-starter, and the alleged accord and satisfaction is based upon a "letter from the defendant, inclosing a check, which was retained by the plaintiff, this action being brought for the balance of. the purchase price of the motor. This letter, aside from its formal parts, reads: “We have a report from our factory, and they advise us that the auto-starter for the 50 HP, 2-phase, 60 cycle, Type O., Westinghouse motor we purchased from you is burned out and damaged beyond repair. In other words, the expense of repairing this auto-starter'for service would be greater than the cost of a new one, to say nothing of the loss of time. We have, therefore, decided to purchase a new one. The net price to us from the G-. E. Go. for same auto-starter is $133.00. We are , very sorry indeed to find that there is this damage, and that we are compelled to deduct same from the purchase price of the unit. Please find inclosed check less cost of auto-starter. We are not deducting express' charges of this starter from the factory to destination, although- we have to pay same.”
The plaintiff used this check, and although there was a conflict of evidence as to whether the auto-starter was really any part of the transaction on which the plaintiff sues, and the weight of evidence is wholly with the plaintiff, it is urged that this constitutes an accord and satisfaction. The learned court must have found from the evidence that the defendant purchased the motor at an agreed price of
The judgment appealed from should be affirmed, with costs.
Hirschberg, P. J., Jenks, Hooker and Miller, JJ., concurred.
Judgment of the Municipal Court affirmed, with costs. .