Weller v. Stevens

SHAW, J.

Action to recover a balance of $2,609.40 and interest alleged to be due upon an open account for goods sold and delivered1 by plaintiff’s assignor to defendant. In addition to a general denial, defendant pleaded, by way of a separate defense, an accord and' satisfaction.

The findings as to all the issues were against defendant, and judgment went for plaintiff in accordance with the prayer of the complaint, from which, and an order denying his motion for a new trial, defendant prosecutes this appeal.

Appellant’s claim for a reversal is based upon the ground that the facts proved established an accord and satisfaction, as alleged in his answer; hence, he claims the finding to the contrary is unsupported by the evidence.

It appears from the evidence that defendant employed plaintiff’s assignor to manufacture certain ice machines, the price thereof to be determined by the cost of construction. The machines were constructed in accordance with the specifications therefor and duly delivered to defendant. Thereafter, plaintiff’s assignor sent to defendant a statement of account as to the cost of manufacturing the machines, showing a balance due of $3,030.67. Upon receipt of this statement defendant wrote a letter to the assignor protesting against the charges as being exorbitant, and showing that according to his figures the balance due was only $421.27. as to which, says he in the letter, “I am inclosing you a check for $421.27 covering the same.” There was an absence of

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anything on the check indicating that it was delivered in full payment of the account, and there is nothing in the letter transmitting the check showing that it was intended as payment in full of the account. On the contrary, it appears therefrom that defendant conceded a liability to the extent of $421.27, for, among other things in his letter, he says: “I consider [the charges] altogether too high and I certainly shall not pay this price unless a jury and! judge say that I shall pay the same, and when they do, I am glad to state that the bill will be promptly paid. ... So you see I think your bills are unreasonable and will never pay the same willingly as they now stand.” And in closing he states: “I deeply regret that I cannot see my way clear at the present time to pay the bill as you have seen fit to render it.” In reply to this letter, plaintiff’s assignor wrote: “We inclose herewith the receipt on account for $425.27. We cannot render you receipt in full for the reason that your version of the conditions under which these machines were ordered and built cannot be accepted”; and further requesting that a meeting be arranged between them in order to effect an amicable settlement of the account. Defendant replied to this, expressing his willingness to hold the suggested meeting at a date therein named by him. Defendant testifies: “I did not know prior to this statement that was rendered to me by the plaintiff what the machines were going to cost. I had conversations with the plaintiff, but could get nothing out of them. The date that I wrote to the plaintiff the letter on the 22d of November, 1906, was the first time that I knew the total price of the machines. Prior to that time I had no definite price from them as to the cost of the machines.” This is substantially all the evidence touching the question at issue, and' we think it clearly justified the court in finding the issue in favor of plaintiff. Defendant testifies that he intended the check to be in full payment of the account, but there is absolutely nothing in the record tending to show that he gave expression to such intention. His undisclosed intention could not bind the plaintiff. Neither upon the check nor in the letter was there any statement to indicate to plaintiff that it was intended to be in full payment. 1