Town & Country Swimming Pools, Inc. v. Preco Chemical Corp.

— In an action to recover for breach of express and implied warranties, plaintiff appeals from a judgment of the Supreme Court, Nassau County (Young, J.), dated November 17,1982, which dismissed the complaint, after a nonjury trial, based on the finding that defendant had proved an accord and satisfaction. Judgment reversed, on the law and the facts, with costs, plaintiff is granted judgment on the issue of liability and the case is remitted to the Supreme Court, Nassau County, for a trial on the issue of damages. “It is * * * well settled that where a debtor tenders less than full payment of a disputed unliquidated claim, there must be a clear manifestation of intent by the debtor that the payment is in full satisfaction of the disputed claim” (Boyle v American Airlines, 89 AD2d 667). The trial court erred in the instant case in holding that defendant had proved the existence of an accord and satisfaction. The testimony at trial established that the purposes of the June 8, 1978 agreement were to solve the problem of the peeling paint and to satisfy plaintiff as a potential customer of defendant. Neither the testimony nor the letter of June 8,1978 established that defendant intended the tender of the Ceramix to plaintiff to serve as full satisfaction for any future liability it might incur as a result of the paint peeling problem. While plaintiff is entitled to judgment as to liability, the record is inadequate to enable us to assess its damages. Damiani, J. P., Mangano, O’Connor and Niehoff, JJ., concur.