Lester v. F. David & Co., Inc., 5826.

• Decision Date: 01 February 1924
• Docket Number: No. 5826.,5826.
• Citation: 123 A. 293
• Parties: LESTER et al. v. F. DAVID & CO., Inc.
• Court: Rhode Island Supreme Court

123 A. 293

LESTER et al.

v. F. DAVID & CO., Inc.

No. 5826.

Supreme Court of Rhode Island.

Feb. 1, 1924.

Exceptions from Superior Court, Newport County; Antonio A. Capotosto, Judge.

Action by Frank B. Lester and another, copartners, against F. David & Co., Inc. Verdict for plaintiffs, and defendant excepts. Exceptions overruled, and case remitted.

Sheffield & Harvey, of Newport, for plaintiffs.

Gardner, Moss & Haslam, of Providence, for defendant.

PER CURIAM. This action was brought to recover a balance alleged to be due on book account for goods sold and delivered. The defendant pleaded the general issue, and also accord and satisfaction.

The trial in the superior court resulted in a verdict for the plaintiff for $1,131.50, and the case is before us on the defendant's exception to the refusal of the trial justice to instruct the jury as requested, also on the defendant's exception to the action of said justice in denying the defendant's motion for a new trial.

The defendant excepted to the refusal of the trial court to instruct the jury as follows:

"The plaintiffs are limited in the amount which they may recover to the charges appearing in their bill of particulars, but the defendant is entitled to credit for all payments which he has made subsequent to June 9, 1920, that is, the date of the first charge appearing in the bill of particulars. The defendant is therefore, in any event, entitled to have deducted from the balance which the plaintiffs claim is due them, the payment of $662.80, made by check dated January 12, 1921, and the payment of $111.09, made by check dated August 5, 1921."

The plaintiffs produced their books, and presented other evidence to the effect that said payments were not made on the running account, but were made in full payment of particular invoices, which were not included in the account sued for. Whether the defendant was entitled to credit for said payments was a question for the jury, and the court was correct in refusing to instruct the jury as requested.

After a dispute had arisen between the parties as to the amount of the balance which was due the plaintiffs, one of the plaintiffs' salesmen called at the defendant's place of business, and received a check for $523.18, payable to the plaintiffs. The defendant's contention was that the check was accepted by the plaintiffs as full payment for the amount due. One of the plaintiffs testified that said check was accepted on account and not as full payment, and...