C. Itoh & Co. (America) Inc. v. F.W. Honerkamp Co., Inc.

• Decision Date: 05 January 1984
• Citation: 99 A.D.2d 417,470 N.Y.S.2d 593
• Court: New York Supreme Court — Appellate Division
• Parties: C. ITOH & CO. (AMERICA) INC., Plaintiff-Respondent, v. F.W. HONERKAMP CO., INC., Defendant-Appellant.

Page 593

470 N.Y.S.2d 593

99 A.D.2d 417

C. ITOH & CO. (AMERICA) INC., Plaintiff-Respondent, v. F.W. HONERKAMP CO., INC., Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Jan. 5, 1984.

M.E. Feldman, Brooklyn, for plaintiff-respondent.

R.J. Kilsheimer, New York City, for defendant-appellant.

Before SANDLER, J.P., and SULLIVAN, ROSS, ASCH and ALEXANDER, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered February 3, 1983, denying defendant's motion for summary judgment dismissing the complaint, affirmed, with costs and disbursements.

Plaintiff instituted this action to recover the balance due for plywood paneling sold and delivered by it to defendant. Defendant claims that some of the panelling was defective; that it requested plaintiff to remove the defective goods; but that plaintiff's salesman, Greenbaum, asked it to retain the goods, sell them as lower grade material, and take a 50% discount from the invoice price. Plaintiff contends that defendant was to pay 50% on account, with the balance to be determined by future negotiation.

On April 18, 1980 defendant sent a letter to plaintiff in which it listed the total figures on the invoices ($21,055.36) and claimed a credit due of $10,527.68. The letter ended with a request to plaintiff to "[p]lease advise." Plaintiff did not respond. On April 29, 1980, defendant sent a check to plaintiff for $13,352.88, with the notation "Payment in full" on the front of the check, underneath the reference box in the upper left hand corner. Plaintiff cashed the check, and subsequently brought suit to recover the balance.

Defendant moved for summary judgment dismissing the complaint on the ground that there had been an accord and satisfaction as a matter of law. In opposition, plaintiff submitted an affidavit from Greenbaum, who contended that he agreed to accept $13,352.88, on account, with negotiations on the remainder to follow, and that after a factory inspection determined that the boards were not defective plaintiff pursued its claim. In addition, plaintiff's cashier's clerk stated in an affidavit that she deposited between 20 and 40 checks a day; that she would not routinely cash a check which contained any restrictive or conditional endorsement on its back, and that she did not notice the "Payment in full" words on the front because they were barely discernible and she did not "study every payment ... with a fine tooth comb."

Special Term denied the motion. Citing Mais v. Futuristic Foods, Inc., 90 Misc.2d 259, 394 N.Y.S.2d 359, it found that the words "Payment in full" were not "written or placed in such a way as to draw attention to their significance...."

The motion was properly denied. An essential element of an accord and satisfaction is a clear manifestation of intent by one tendering less than full payment of an unliquidated claim that the payment has been sent in full satisfaction of the disputed claim. (Hudson v. Yonkers Fruit Co., 258 N.Y. 168, 174, 179 N.E. 373; Manley v. Pandick Press, 72 A.D.2d 452, 454, 424 N.Y.S.2d 902; Hirsch v. Berger Import & Mfg. Co., 67 A.D.2d 30, 34, 414 N.Y.S.2d 324.) Here, defendant in its letter of April 18, 1980 initially requested plaintiff to "please advise", apparently as to whether it agreed with the calculations in the letter. Plaintiff did not respond. The check subsequently sent contained the words, "Payment in full" on the front, but the legend was not highlighted nor marked in any way as to draw attention to it. No such condition appears on the back of the check where an endorsement is normally placed. Nor did a letter clearly indicating that negotiation of the check would constitute an accord and satisfaction accompany the check. In such circumstances an issue of fact sufficient to warrant denial of summary judgment is presented as to whether plaintiff was aware that negotiation of the check would constitute an accord and satisfaction.

All concur except ROSS and ALEXANDER, JJ., who dissent in a memorandum by ALEXANDER, J., as follows:

In my view the order below should be reversed and the defendant's motion for summary judgment granted. Both Special Term and the majority focus undue attention upon and attach undeserved importance to the words "please advise" inscribed on the defendant's letter of April 18, addressed to Larry Greenbaum, salesman for the plaintiff. Defendant has asserted and the plaintiff has not denied, that soon after the defective condition of the panelling became apparent, he complained to the plaintiff and invited the plaintiff to...