Frank v. Frost

174 N.W. 911, 170 Wis. 353, 1919 Wisc. LEXIS 39

• Court: Wisconsin Supreme Court
• Decided: December 2, 1919
• Status: Published

Opinion

Eschweiler, J.

The effect of the verdict in this case went no further than to relieve the defendant from any liability upon the one disputed issue as to whether or not there was an outright purchase of the eight bushels at $8 per bushel. Whether this arrangement on April 3d was an entirely new contract or a modification of the original one is immaterial. The court below, therefore, rightly held that under the verdict and the undisputed facts and circumstances the retention of the $44 check from April 29th until its tender back was refused by defendant on August 2d was not such a completed accord and satisfaction as was pleaded by defendant. Had the check been cashed and the money retained by plaintiff there would have been force in defendant’s contention. Nassoiy v. Tomlinson, 148 N. Y. 326, 331, 42 N. E. 715; Swindell v. Youngstown S. & T. Co. 230 Fed. 438, 443.

No payment was made into court by defendant of the $44 or any part thereof, or any attempt made to comply with the provisions of Circuit Court Rule XV or of sec. 4266, Stats., as to tender. No offer of judgment was made under sec. 27$9, Stats. It was therefore properly held that such retention of the check had no further effect on the rights of the parties than to defeat any claim for interest. Pahl v. Komorowski, 168 Wis. 553, 556, 170 N. W. 950; Weigell v. Gregg, 161 Wis. 413, 420, 154 N. W. 645. Such effect was given to it by the judgment below, and we can find no error in the record.

By the Court. — Judgment affirmed.