| N.Y. App. Term. | Nov 12, 1909
The plaintiff is a physician, and claims that he and defendant made a contract by which plaintiff was to be paid $20 a week for treating defendant’s wife for tuberculosis of the knee; that he treated her 15 weeks, making a charge of $300, of which only $50 have been paid. Defendant denies any such agreement, but admits plaintiff treated defendant’s wife for tuberculosis of the knee and was paid $50 therefor, and he claims that said payment of $50 was in full
The defendant contends that he and his wife called on plaintiff, who agreed to treat his said wife for $3 a visit when such visit was made at the house of defendant, and $1 a visit when made at plaintiff’s office, and that the visits at these prices called for less than $50, and defendant denies that any weekly arrangement was made. In support of defendant’s claim a check is produced, payable to plaintiff and signed by defendant, for $50, upon which appear the words “paid in full.” This is the check by which the $50 admitted to have been received by plaintiff were paid. There seems, so far as the evidence shows, to be no dispute that these words appeared on the check when delivered, to plaintiff, and that the plaintiff took the check, retained it for several days, and then got the check cashed and kept the proceeds. The cashing of the check, with these words thereon, however, could not be construed as an accord and satisfaction, unless there was a genuine dispute at the time between the parties as to the amount due. The alleged services were claimed to have been rendered between October 1, 1907, and January 6, 1908, and the defendant claims that on January 10, 1908, there was a conversation at defendant’s residence between himself and plaintiff, in which plaintiff demanded $100, which defendant refused to pay, and that there was a sharp dispute as to the amount that defendant owed plaintiff, as the defendant claimed that he only owed for 15 visits in all, half of which were rendered at plaintiff’s office and the other half at defendant’s residence, at the rates of $1 for each of the first class of visits and $3 for each of the other class of visits, and that after a long discussion it was agreed that the amount due should be compromised at $50, and thereupon the above check was given by defendant to plaintiff, who cashed it on January 21, 1908. It is also claimed by the defendant that his wife is-still ill from the same malady, and is being treated by another physician.
Plaintiff denies any such conversation on January 10, 1908, and says defendant’s wife called on him on January 9th, and gave him the check in question. The plaintiff further alleges that he objected to the smallness of the amount, and that defendant’s wife promised to pay him the balance on plaintiff’s return from Europe, whereupon he said:
“I have to take it, because I have not got time to waste on any more negotiations between Mr. Levy and myself.”
This is an important admission, which is not subsequently modified or withdrawn, as to the existence, as claimed by defendant, of a genuine dispute with respect to the amount due, so that the acceptance of the check, with the words “paid in full” thereon, would seem to have been an accord and satisfaction, as the wife was without authority to make any promise to pay more, and as there is nothing to indicate that plaintiff had reason to believe that the wife had authority from her husband to make the said promise, in face of the words “paid in full,” written by the husband on the check, which check plaintiff kept until the 21st of January, and then got the money thereon, as appears from the check itself, and as admitted by plaintiff.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event.