Deuches v. Grand Rapids Brass Co.

Fellows, J. (after stating the facts). Plaintiff’s counsel insists that the language used in the indorsement is not established beyond dispute. Plaintiff did not read it and does not undertake to testify on the subject. • Having destroyed the documentary evidence an unfavorable presumption arose against him. Pitcher v. Rogers’ Estate, 199 Mich. 114. The witnesses who testified on the subject were of course obliged to speak from memory and, while they did not at all times use the precise words quoted above in ■giving their testimony, the substance of the indorsement is established beyond question. Nor can it be questioned that there was a bona fide dispute. The company had in its possession a writing which, whether it possessed the elements of a binding contract or not, fixed the wage at the rate of $85 a week and pursuant to it defendant tendered him payment for the time actually put in. He, insisting that he was to receive $65 a week whether he put in full time or not, declined to accept the payments tendered. He had been discharged, and, if the contract of employment was as claimed by him, it was breached when he accepted the checks. It is idle to claim there was not a bona fide dispute. Upon the main question the case is controlled by Shaw v. United Motors Products Co., 239 Mich. 194, handed down since this case was submitted. It was there pointed out by Mr. Justice Wiest, who wrote for the court, that to effectuate accord and satisfaction *269 a prior agreement is not necessary. It was there said: “It is evident the circuit judge applied the rule relative to acceptance under an agreement and not an acceptance of a condition. The governing rule in the case at bar is based upon the condition accompanying the tender and consequent acceptance of the condition in retaining the money. This required no previous agreement, but rests upon a dispute as to the amount due.” Nor does it avail plaintiff that, after accepting and before cashing the check, he, without the knowledge or consent of defendant, obliterated from it the statement of the conditions upon which it was given. In the case of In re Cunningham’s Estate, 311 Ill. 311. 315 (142 N. E. 740), it was said: “The fact that the words ‘in full’ are erased from the check or receipt by the creditor does not affect the question whether the proffer and acceptance of the check constitute an accord and satisfaction, where the erasure is without the knowledge or authority of the debtor.” See, also, Hull v. Johnson & Co., 22 R. I. 66 (46 Atl. 182); Beck Electric Construction Co. v. Contracting Co., 143 Minn. 190 (173 N. W. 413); Ryan v. Publishing Co., 16 Ga. App. 83 (84 S. E. 834); 1 C. J. p. 564. The judgment will be affirmed. Sharpe, C. J., and Bird, Snow, Steere, Wiest, Clark, and McDonald, JJ., concurred.