178 A.D. 833 | N.Y. App. Div. | 1917
Lead Opinion
There was clearly no accord and satisfaction disclosed by the evidence. Defendant-had agreed to purchase merchandise at a fixed price. It was delivered to and retained by him.
That this transaction does not constitute an accord and satisfaction is well established. (Windmuller v. Goodyear Tire & Rubber Co., 123 App. Div. 424; Eames Vacuum Brake Co. v. Prosser, 157 N. Y. 289; Laroe v. Sugar Loaf Dairy Co., 180 id. 367; Kleinfelter v. Granger, 136 N. Y. Supp. 485; affd., sub nom. Klinefelter v. Peterson, 152 App. Div. 896.)
That defendant, when he sent the check, wrote that he was sending it as full payment does not affect the question. He could not by paying'an amount admittedly due in any event, foreclose plaintiffs from claiming that more was due, nor yet subject them to the risk of postponing the payment of the whole claim, until defendant’s relatively small counterclaim could be judicially liquidated. To hold otherwise would result, in many cases, in permitting a debtor to coerce his creditor into making an unjustified deduction from his bill.
The determination of the Appellate Term is reversed and the judgment of the Municipal Court affirmed, with costs to plaintiffs, appellants, in this court and the Appellate Term.
Clarke, P. J., Page and Davis, JJ., concurred; Laugh-list, J., dissented.
Dissenting Opinion
(dissenting):
I am of opinion that there was an accord and satisfaction. The plaintiffs had a claim against the defendant on an express contract for the sale and delivery of merchandise at a fixed price, but the defendant, evidently in good faith, claimed an offset on the ground that the goods delivered and received and retained by him were not of the agreed quality. The amount of the defendant’s offset was clearly unliquidated for the plaintiffs did not concede that the defendant was entitled to any offset or deduction on account of the quality of the goods. In these circumstances the defendant sent the plaintiffs a check for the balance of the contract price of the goods
I, therefore, vote for affirmance.
Determination reversed and judgment of Municipal Court affirmed, with costs to plaintiffs in this court and in the Appellate Term.