26 N.Y.S. 461 | N.Y. Sup. Ct. | 1893
Plaintiff’s intestate and defendant, who were co-partners, in January, 1889, had an accounting, on which there appeared to be due from deceased to the defendant $1,125. Defendant agreed to take the sum of $1,000, and deceased gave his notes therefor, which were afterwards paid. The plaintiff, claiming that there were errors and mistakes in the said accounting to the amount of $454.74, brought this action. The issues in the action were referred, and the referee found in favor of the plaintiff.
We have entertained some doubt whether the transaction between the parties, at the time deceased gave the notes, did not. amount to an accord and satisfaction. If so, plaintiff could not recover without showing fraud or mutual mistake. If the settlement between the parties was in fact an accord and satisfaction, no fraud or mutual mistake being shown upon the trial, the judgment cannot be sustained. But on carefully considering the evidence we are of the opinion that the referee could properly find' therefrom that the settlement was a mere accounting, and not an accord. The witness Coyle seems to have been allowed by both parties to draw off the account between them, and his statement of such account to have been acquiesced in by both parties. The testimony does not show any real dispute or controversy. Something was said about interest, but it does not appear that defendant insisted that he had a right to it. The evidence was such that the learned referee could properly find the transaction an account stated. Such being the case, an item or items omitted from the
