Lovekin, Receivers of Tindel-Morris Co. v. Fairbanks, Morse & Co.

• Decision Date: 05 January 1925
• Docket Number: 47
• Citation: 282 Pa. 100,127 A. 450
• Parties: Lovekin et al., Receivers of Tindel-Morris Co., v. Fairbanks, Morse & Co., Appellant
• Court: Pennsylvania Supreme Court

127 A. 450

282 Pa. 100

Lovekin et al., Receivers of Tindel-Morris Co., v. Fairbanks, Morse & Co., Appellant

No. 47

Supreme Court of Pennsylvania

January 5, 1925

Argued November 28, 1924

Appeal, No. 47, Jan. T., 1925, by defendant, from judgment of C.P. No. 3, Phila. Co., June T., 1921, No. 7565, on verdict for plaintiffs, in case of Luther D. Lovekin and J. B Colahan, receivers of Tindel-Morris Co., v. Fairbanks, Morse & Co. Affirmed.

Assumpsit for goods sold and delivered. Before FERGUSON, J.

The opinion of the Supreme Court states the facts.

Judgment on directed verdict for plaintiffs for $3,499. Defendant appealed.

Error assigned was striking out defendant's evidence, quoting record.

The judgment of the court below is affirmed.

A. G Dickson, for appellant. -- Where in case of dispute a sum is offered as payment in full, the party to whom it is made must refuse or accept on the conditions involved in the tender. If he accepts the payment, the condition on which it was made goes with it: Bernstein v. Hirsch, 33 Pa.Super. 87.

Robert J. Boltz, for appellees, cited: Societe Anonyme, etc., v. Loeb, Lipper & Co., 239 Pa. 264; Dimmick v. Banning, Cooper & Co., 256 Pa. 295; Amsler v. McClure, 238 Pa. 409.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SIMPSON:

When appellees were appointed receivers of the Tindel-Morris Company, there were two unsettled accounts between that company and appellant, who was defendant below. The two were exactly alike except as to dates and amounts, and hence only one need be detailed. In it the receivers claimed $9,614.83 for certain materials delivered to defendant; the latter alleged that the goods were not of the quality contracted for, and claimed to recoup $2,920 because thereof. No agreement of settlement or compromise was made, but defendant sent to plaintiff a check for $6,694.83, the amount which was undisputed. On the same paper, below the check, was printed a statement as follows:

"STATEMENT OF SETTLEMENT ACCOUNT OF

TINDEL-MORRIS CO.

3 Rivers a/c

Dis-

Date

Remarks

Debits

Credits

Balance

tribution

Dec 9

381 47

B H T

31

9233 36

9614 83

2920 00

6694 83

Less our

Chg 2/11

"NOTE: If amount is not satisfactory, return without alteration or correction."

On the back of the check appeared the words "By the endorsement of this voucher check the payee accepts the amount of same in payment of account as per statement of settlement within." The receivers endorsed the check below the words last quoted, and it was then paid by the bank upon which it was drawn. Appellant claims that this resulted in a full and complete accord and satisfaction, and that no recovery can be had for the disputed amount, which the receivers seek to obtain by this action.

On the trial, defendant produced no evidence to show it was entitled to a credit because of the quality of the goods delivered, but planted its entire defense on the alleged accord and satisfaction. The trial judge directed a verdict for plaintiff, which ruling the court in banc sustained in the following opinion: "The charge of the court directing a verdict for plaintiff sufficiently states the facts and the views of the trial judge on the law: Dimmick v. Banning, Cooper & Co., 256 Pa. 295, and Snowiss v. Elias Loeb & Co., 81 Pa.Super. 124, are the authorities relied upon. The following language from the first case applies to the case at bar: 'We find no express statement in the letter or elsewhere to the effect that the check, if accepted, would be considered as a compromise of the claim, or that it was tendered as such, or that acceptance thereof would be considered a waiver of plaintiff's right to the balance of their claim. On the contrary, the letter expressly states the payment was made in settlement of the difference between the amount of the plaintiffs' claim and defendant's loss. In view of this statement the clause in the receipt reciting the check to be in full for the above account merely amounts to a receipt in full for the balance of the account and leaves no room for the contention of a tender, as a compromise in settlement of the entire claim of plaintiffs.'" Plaintiff in the instant case thereupon entered judgment on the verdict and defendant appealed.

But little need be added to the above-quoted opinion. The payment made was not a compromise, for it included only the exact amount which was admitted to be due. Paying...