16 N.Y.S. 158 | New York Court of Common Pleas | 1891
The facts, so far as they appear from the agreed statement made for the purposes of the trial, are as follows: Plaintiff, a physician, performed services as such at the request of the defendant, without any express previous understanding as to the rate of compensation to be charged and paid. For these services plaintiff rendered a bill amounting to $670, on receipt of which defendant wrote to plaintiff expressing surprise at the amount, requesting him to give the matter his attention, and to send a corrected bill. In compliance with this request, plaintiff rendered an itemized bill, the footing of which was, as before, $670. Thereupon defendant wrote plaintiff as follows: “I inclose my check for four hundred dollars, in full satisfaction of your claim for professional services against me to date. The deductions I have made have been in the instances when you have charged me 5, 4, and 3 visits per day, at full rates. I trust that you will view the matter in the same spirit in which I do, which is to fix a figure which will be entirely just to you and to myself. I have arrived at the within conclusion only after careful and earnest thought. ” Accompanying this letter was defendant’s check for $400 to plaintiff’s order, in usual form, and bearing no indorsement, indicating that its use by plaintiff was intended by defendant as an acceptance of the amount in satisfaction of the claim for services. On receipt of the last-mentioned letter, plaintiff again rendered a bill to defendant for the former amount, crediting defendant with a payment of $400 on account, and insisting upon payment of the balance. The check was indorsed by plaintiff, and the amount thereof received and retained by him. To plaintiff’s last bill defendant replied by letter, as follows: “I forwarded check for $400 to your order, inclosed in my letter of March 13, 1889, upon the express condition, therein named, that the same was inclosed as payment in full satisfaction of your claim for professional services against me to date. I do not recognize that you have the right to retain the amount so offered upon that distinct understanding, and yet repudiate the condition of the offer. Either keep the money upon the condition named, or return same to me by return mail.” Plaintiff did not return the amount of the check, but brought this action for the balance claimed by him to be due. Under his defense of accord and satisfaction, the defendant relied upon the foregoing facts as a bar to plaintiff’s recovery, and it was agreed between the parties that, for the purposes of that defense, the value of plaintiff’s services should be taken to have been $570, and that neither party should be awarded, as against the other, either the costs of the action, or of any appeal from the judgment to be entered therein. The learned trial judge held the facts insufficient to support an accord and satisfaction, and directed judgment in favor of plaintiff for $170, from which defendant now appeals.
The question presented to us for solution, upon the facts submitted, is not whether the plaintiff may lawfully retain the check, and yet refuse compliance with the condition upon which it was tendered, but whether the retention and use of the check by the plaintiff, notwithstanding its conditional tender by the defendant, operated as an acceptance thereof in satisfaction of plaintiff’s demand, contrary to his express and unequivocal refusal soto receive it. An accord and satisfaction is the substitution of a new agreement between the same parties in the place of the former one, and the execution of such new agreement by each of the parties thereto on his part, (Lawson, Bights, Bern. & Pr. p. 4228, § 2567; 1 Amer. & Eng. Enc. Law, p. 94, “Accord and Satisfaction;” 2 Pars. Cont. p. 681, § 4; Kromer v. Heim, 75 N. Y. 574,) and unless, therefore, the facts present the constituent elements of a valid new agreement, the plea of accord and satisfaction is not supported. These elements are parties, subject-matter, consideration, and assent, (1 Pars. Cont. § 111, p. 8;) the existence of the last two being denied by the plaintiff. Were we satisfied that the element of assent is not wanting, we would not hesitate to reverse the judgment appealed from, as the facts conclusively estab