Eckert v. Wallace

The opinion of the court was delivered by Pitney, J. Plaintiff did work and furnished materials to the amount and value of $70.58 in and about the repairs of a building owned by the defendant. Eor the balance of $20.58 remaining due, after crediting the defendant with a payment of $50, the plaintiff recovered judgment herein. The defence was an accord and satisfaction. It appeared that the payment of $50 was made in the form of a check inclosed in a letter from defendant to plaintiff stating that this payment was in full settlement of the amount due from defendant to plaintiff. Plaintiff drew the money upon the check, but refused to accept it as payment in full. The question presented by this appeal is whether the circumstances of the making and acceptance of the payment conclusively evidenced an accord and satisfaction. This depends upon whether the plaintiff’s claim of $70.58 was a liquidated demand concededly due from the defendant to him, or whether there was a Iona, fide dispute between the parties as to the work done and materials furnished by the plaintiff, or — 172 — as to the amount justly due to him therefor. From the state of the case it appears that upon the trial below (which was had before the District Court judge without a jury) there was conflicting evidence upon this question. The trial judge found, as a matter of fact, that the work and materials in question were performed and furnished for the defendant at his request; that the value-thereof was $70.58, and that the plaintiff’s claim was liquidated. This necessarily imports a finding that there was no bona fide dispute with respect to the existence of the claim or the amount due thereon. In this state it is settled that a parol agreement by a creditor to accept from his debtor less than is due by way of a compromise is void for want of consideration and cannot be set up in bar as an accord and satisfaction. Daniels v. Hatch, 1 Zab. 391; Line v. Nelson, 9 Vroom 358; Watts v. French, 4 C. E. Gr. 407; Oliver v. Phelps, Spenc. 180; 1 Zab. 597; Chambers v. Niagara Fire Insurance Co., 29 Vroom 216. To the facts as found by him the District Court judge properly applied this rule of law. The judgment under review should be affirmed, with costs.