254 Mass. 334 | Mass. | 1926
This is an action of contract for goods sold and delivered, the plaintiff being assignee of the account from Peter Benoit, the vendor. On separate dates, beginning August 22, 1924, and ending September 4, 1924, seven lots of shoes were sold to the defendant at an agreed price for each lot, the whole, amounting to $3,662, with credits of $1,200 on August 22 and of $2,079.20 on September 4, leaving a balance of $382.80. The answer, in addition to a general denial and defence of payment, alleges delivery by the defendant and acceptance by the plaintiff’s assignor of a check in the sum of $2,079.20 in full satisfaction and accord of the claims set forth in the plaintiff’s declaration.
Benoit was a shoe jobber in Haverhill. His general manager, one Goodwin, had sold the shoes to the defendant at Benoit’s place of business from samples there shown. The shoes were received by the defendant at the times stated in the declaration. The defendant testified that many pairs of shoes introduced at the trial as part of the shipments showed defects in appearance, shape and workmanship. Goodwin, testifying for the plaintiff, said that these conditions were consistent -with the price paid for these
The trial judge could have found upon the evidence that there was no breach of warranty, no genuine dispute about the amount due, no compromise of a disputed claim, and that the plaintiff had no reason to believe that the defendant’s letter and check were anything but an effort to get a discount to which he was not entitled on an admitted liability. In finding for the plaintiff and declining to make the findings of fact and rulings requested by the defendant, it is evident that the judge took the view, justified by the evidence, that the defendant did not maintain the burden of proving an accord and satisfaction. In these circumstances if it be assumed that the check was accepted with the conditions attached, “the case would come within the rule which is well established in Massachusetts, that an agreement to
All exceptions argued have been considered and no reversible error appears.
Order dismissing report affirmed.