195 S.E. 596 | W. Va. | 1938
Defendant mailed plaintiff a voucher check of $500.00, inscribed "in full settlement of the within account." The *646 account therein showed a balance of $900.00 due plaintiff, against which was credited the $500.00 check and an item of $400.00 claimed by defendant as anticipated profit upon an order it had sent plaintiff, but which the latter had not accepted. Plaintiff at once repudiated the $400.00 item, and at first refused the check. In the words of defendant's witness, the check "was shuttled backward and forward several times." Finally, plaintiff cashed it, credited defendant's account with $500.00 and brought this action for $400.00. Defendant pleaded accord and satisfaction, and gave notice of set-off, but offered evidence only in support of its plea. The case was submitted to the court in lieu of a jury and the court entered judgment for defendant.
Both the trial court (as shown by a memorandum) and the brief of defendant, rely upon the case of LeGrand v. Hamrick,
The balance of $900.00 on the account was undisputed; defendant admitted its obligation to pay $500.00 thereof, in any event; so, payment of that sum, alone, furnished no consideration for release of the remaining $400.00; and the payment, though purporting to settle fully the account, did not do so. The inscription to that effect on the check was simply a nudum pactum. Nixon v. Kiddy,
The judgment of the circuit court is reversed, and judgment for the plaintiff, which the circuit court should have entered, is entered here.
Judgment reversed and rendered.