Fuller v. Kemp

• Court: New York Court of Appeals
• Writing for the Court: MAYNARD
• Citation: 33 N.E. 1034,138 N.Y. 231
• Decision Date: 02 May 1893
• Parties: FULLER v. KEMP.

138 N.Y. 231
33 N.E. 1034

FULLER
v.
KEMP.

Court of Appeals of New York.

May 2, 1893.

Appeal from common pleas of New York city and county, general term.

Action by Fraser C. Fuller against Edward Kemp, Jr., for balance due for professional services as a physician. From a judgment of the general term (16 N. Y. Supp. 158) affirming a judgment in plaintiff's favor, defendant appeals. Reversed.

[138 N.Y. 232]R. Floyd Clarke, for appellant.

138 N.Y. 234]Henry Thompson, for respondent.
MAYNARD, J.

The plaintiff has brought suit to recover a balance claimed to be due for his services as a physician, and the defendant relies solely upon the defense of an accord and satisfaction. The parties have agreed upon a statement of facts embracing the entire issue raised by the pleadings, and we are required to determine whether, upon the facts stipulated, the defendant has, as matter of law, established his defense. The plaintiff's demand was unliquidated, but he alleged that his services were worth $670, and rendered a bill for that amount, without specifying any items. The defendant acknowledged the receipt of the bill by letter, and expressed surprise at its magnitude, and his belief that there must be some mistake about it, and requested plaintiff to look into it and send a corrected bill, as he was anxious to settle the matter at once. The plaintiff then sent an itemized bill, showing 126 visits in 49 days, [138 N.Y. 235]for each of which a charge of $5 was made, and 4 consultations, at the rate of $10 each, making a total of $670, as originally claimed. The defendant then wrote the plaintiff, inclosing a check for $400, which he stated was in full satisfaction of the plaintiff's claim for professional services against him to that date; and also saying that the deductions he had made were in the instance where five, four, and three visits per day had been charged at full rates; and that he trusted the plaintiff would view the matter in the same spirit which he did, which was to fix a figure which would be entirely just to both parties; and that he had arrived at this conclusion after careful and earnest thought. The plaintiff received the letter and check, indorsed the latter and collected the money upon it, which he retained, and again sent his bill to the defendant, charging $670 for his services, and crediting upon it $400 received by check. The defendant thereupon again wrote the plaintiff, calling his attention to the express condition upon which he had forwarded the check, and that it was sent as payment in full satisfaction of the plaintiff's claim for professional services to date; that he did not recognize the plaintiff's right to retain the amount so offered, and repudiate the condition of the offer; and requesting the plaintiff either to keep the money upon the condition named, or return it to him by first mail. To this letter the plaintiff made no reply, but kept the amount of the check, and after the expiration of nearly a year brought this action for the recovery of $270, the balance of his account after applying the $400 received, in which he has recovered the sum of $170, which it was stipulated upon the trial should be the amount of the judgment if he was entitled to recover at...