29 Pa. Super. 642 | Pa. Super. Ct. | 1905
Opinion by
The correctness of the plaintiff’s claim is admitted in the affidavit of defense. The defense consists of an alleged set-off, and an accord and satisfaction. It is very clear that the averment of the affidavit that a check sent to the plaintiff was accepted in full of all accounts was not intended as an assertion that the plaintiff had agreed to so accept. It is the defendant’s conclusion from the facts. The plaintiff received the check and used it. It was' accompanied by another paper containing a statement of the defendant’s account with the plaintiff in which a credit was claimed for damages on account of the failure of the plaintiff to deliver yam in accordance with a contract which the defendant alleges was entered into. No notice was given to the plaintiff when the check was sent that its acceptance would amount to a payment in full of the plaintiff’s claim, or that it would be treated as a satisfaction of all demands. Nor was the plaintiff informed that a compromise ivas tendered. The amount of the cheek was admitted to be due by the defendant, and the copy of the account accompanying it was apparently intended as a statement of what the latter considered the plaintiff owed him on account of the alleged breach of contract. There was no memorandum on the check that it was to be received in full of all claims or to "be accepted in full of all accounts, or to be accepted in connection Avith the statement of account inclosed. In Ziegler v. McFarland, 147 Pa. 607, a check Avas sent for a part of a claim and with the check a receipted bill for a counterclaim. The check was cashed and the receipt retained for a time, but the transaction Avas held not to amount to an accord and satisfaction because there was no positive averment in the affidavit of defense that the payment was conditional, or that an express direction for its application was given. So here, there is an absence of notice to the plaintiff that the receipt of the check would be con
The claim of set-off depends upon the interpretation of the defendant’s letter of September 21, 1904, in reply to the plaintiff’s telegram of September 19, 1904. The telegram authorized the defendant to sell yarn at twenty-two cents. Two days afterward, the defendant advised the plaintiff, by letter, that he had sold at twenty-one and three-quarter cents, “ which we trust will be satisfactory. You gave us twenty-two cents as stated as the price for the yarn, we could not get it, as we have explained. We are sending order to you at a quarter of a cent more than we obtained and we hope, as stated, that it will he satisfactory. We shall leave it, however, in your hands.” The plaintiff declined to deliver the yam at the lower price and the defendant was obliged to supply his customer from another source at a higher price. The difference in price he claimed to charge against the plaintiff. The evidence of the ■transaction between the parties is in writing and its interpretation is for the court. It seems apparent that the defendant’s letter was not an acceptance of the plaintiff’s offer contained in the telegram. It named a price lower than that given -by the plaintiff and expressed the hope that the latter would accept the price. The words in the letter were, “We are sending the order to you at a quarter of a cent more than we obtained and we hope, as stated, that it will be satisfactory. We shall leave it, however, in your hands.” We are unable to accept the defendant’s interpretation of the letter, that the subject which he left in the plaintiff’s hands was the price and not the order. The plaintiff was not bound to recognize the qualified acceptance of the defendant, nor liable in damages for its refusal so to do.
The judgment is affirmed.
