Silvers v. Grossman

OLNEY, J., Concurring.

I concur in ordering a reversal of the judgment but do not concur in directing further proceedings in the trial court. I believe judgment should be entered for the plaintiff upon the findings. Every fact necessary for that purpose is found, and the only reason for not doing so that is or can be given is the finding of the trial court upon the point of accord and satisfaction. Even if

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further proceedings were necessary for a determination of this point, the further proceedings should certainly be confined to a determination of this issue alone. But in truth there is no occasion for retrying even this issue. The main opinion says that the finding as to accord and satisfaction was in effect that there was an

executed

accord in that the defendant’s promise to pay was accepted in satisfaction of the claim sued on. I do not think this construction should be put upon the finding. It reads: “That prior to the beginning of this action, to wit, on the. 17th day of February, 1916,

as set out in defendcmt’s amended answer under the title ‘Third and Separate

Defensethe defendant gave to plaintiff his promise in writing to pay the sum of fifty dollars in full settlement of all claims for damages plaintiff held against the defendant by reason of that certain accident sued upon and set out in plaintiff’s complaint herein, and that said plaintiff then and there accepted said promise in writing in full settlement, and satisfaction thereof.”

This finding must be construed in connection with, and in the light of, the third and separate defense, to which it refers and whose issues the finding was designed to meet. It seems to me plain enough that all that was intended by the finding was to find an accord and satisfaction “as set out in defendant’s amended answer under the title ‘Third and Separate Defense.’ ” It should be borne in mind that the court had previously overruled a demurrer to this portion of the answer holding that it stated a good defense. I do not think it occurred to counsel or to the court that there was any difference whatever between the facts found and those pleaded. The facts pleaded, as the main opinion shows, were wholly insufficient to constitute an accord and satisfaction. They, in fact, showed affirmatively that there was none. Furthermore, I think it plain enough that the defendant cannot amend his answer so as truthfully to allege an accord and satisfaction, and that he could not prove his answer if he did amend. The supposed accord and satisfaction were carried into a writing which constitutes the final memorial of the transaction. That writing is pleaded and is set out in the main opinion and by-its terms it not only does not show that the plaintiff gave a release in reliance upon the defendant’s promise or accepted the defendant’s promise to pay fifty dollars, as distinguished from the