Metropolitan Shirt Waist Co. v. Kamioner

Appellate Terms of the Supreme Court of New York

Metropolitan Shirt Waist Co. v. Kamioner

138 N.Y.S. 1067

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 9, 1913

StatusPublished

This text of 138 N.Y.S. 1067 (Metropolitan Shirt Waist Co. v. Kamioner) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Metropolitan Shirt Waist Co. v. Kamioner, 138 N.Y.S. 1067 (N.Y. Ct. App. 1913).

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Opinion

GUY, J.

Plaintiff sues to recover a balance of $66.31 alleged to be due for goods sold and delivered. The defense is an accord and satisfaction. Defendant claimed he had returned goods to the amount of $138.82, and that he should be allowed a discount of $37.72, and $2 for express charges. On the trial the shipment of the goods was admitted, and there was proof of the return of some of the! goods by defendant, of a claim by defendant of a discount of $37.42, and a part payment on account.

About March 15, 1912, plaintiff’s representative, Silverstein, called and demanded payment of the balance. A dispute arose as to the return of the goods and the discount. Finally defendant’s bookkeeper wrote out and delivered a check for $195.83, “in full payment to date.” [1068]*1068This was the balance' due as shown by defendant’s books. He told plaintiff’s representative it was in full. The latter took it. The plaintiff indorsed it, deposited it, collected it, and still retains the amount collected. Silverstein testified that the defendant claimed there were returned goods; that some goods were in fact returned, though less than defendant claimed; did not deny that there was talk about a discount; admitted the receipt of the check; said he did not see the words “Paid in full” on the check, which are not the words written on the check.

There was an honest dispute as to the amount due, which was terminated by plaintiff’s taking and collecting a check for the amount tendered by. defendant “in full payment to date.” It matters not whether there was a “solid foundation for the dispute. The test in such cases is: Was the dispute honest or fraudulent? If honest, it affords the basis for an accord between the parties, which the law favors, the' execution of which is the satisfaction.” Simons v. American Legion of Honor, 178 N. Y. 263, 265, 268, 269, 70 N. E. 776; Seybel v. Metz, 120 App. Div. 291, 293, 105 N. Y. Supp. 145, affirmed 194 N. Y. 589, 88 N. E. 1132.

Judgment reversed, with costs, and complaint dismissed, with costs. All concur.

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GUY, J.

Plaintiff sues to recover a balance of $66.31 alleged to be due for goods sold and delivered. The defense is an accord and satisfaction. Defendant claimed he had returned goods to the amount of $138.82, and that he should be allowed a discount of $37.72, and $2 for express charges. On the trial the shipment of the goods was admitted, and there was proof of the return of some of the! goods by defendant, of a claim by defendant of a discount of $37.42, and a part payment on account.

About March 15, 1912, plaintiff’s representative, Silverstein, called and demanded payment of the balance. A dispute arose as to the return of the goods and the discount. Finally defendant’s bookkeeper wrote out and delivered a check for $195.83, “in full payment to date.” [1068]*1068This was the balance' due as shown by defendant’s books. He told plaintiff’s representative it was in full. The latter took it. The plaintiff indorsed it, deposited it, collected it, and still retains the amount collected. Silverstein testified that the defendant claimed there were returned goods; that some goods were in fact returned, though less than defendant claimed; did not deny that there was talk about a discount; admitted the receipt of the check; said he did not see the words “Paid in full” on the check, which are not the words written on the check.

There was an honest dispute as to the amount due, which was terminated by plaintiff’s taking and collecting a check for the amount tendered by. defendant “in full payment to date.” It matters not whether there was a “solid foundation for the dispute. The test in such cases is: Was the dispute honest or fraudulent? If honest, it affords the basis for an accord between the parties, which the law favors, the' execution of which is the satisfaction.” Simons v. American Legion of Honor, 178 N. Y. 263, 265, 268, 269, 70 N. E. 776; Seybel v. Metz, 120 App. Div. 291, 293, 105 N. Y. Supp. 145, affirmed 194 N. Y. 589, 88 N. E. 1132.

Judgment reversed, with costs, and complaint dismissed, with costs. All concur.

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138 N.Y.S. 1067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metropolitan-shirt-waist-co-v-kamioner-nyappterm-1913.

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