Manse v. Hossington
| Citation | 205 N.Y. 33,98 N.E. 203 |
| Parties | MANSE v. HOSSINGTON. |
| Decision Date | 19 March 1912 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Fourth Department.
Action by Louis C. Manse against George A. Hossington, revived, after defendant's death, against Hattie Hossington, his executrix. From a judgment of the Appellate Division (140 App. Div. 917,125 N. Y. Supp. 1130), affirming a judgment for plaintiff, defendant appeals. Reversed and remanded.Thomas Burns, of Watertown, for appellant.
Mason M. Swan, of Watertown, for respondent.
This action is brought to recover one-third of the receipts from the product of a dairy from October 7, 1904, to March 1, 1905, as part of the alleged agreed consideration for the services of the plaintiff and his family on the farm of the defendant's testator.
The plaintiff claims that the defendant's testator agreed to give him for such services the use of a house all necessary food, provisions, and fuel for himself and family during said term and in addition thereto, one-third of the receipts from the product of said dairy. The services are not disputed, and the plaintiff had the use of a house and also all necessary food, provisions, and fuel for himself and family during said term. Issue was joined, and the trial took place in the lifetime of the defendant's testator. He denied that he had agreed to give the plaintiff any part of the receipts from the product of said dairy as a part consideration for said services.
[1] Upon the trial, the issue of fact relating to the contract was supported on the part of the plaintiff by his testimony and that of his wife, and on the part of the defendant's testator by his testimony and that of the present defendant who was his wife. It was necessary to submit such question of fact to the jury.
[2][3] The plaintiff with two of his minor sons had been employed by the defendant's testator prior to October 7, 1904. Such employment was at an agreed price for each day's service. On March 1, 1905, there concededly remained due and unpaid to the plaintiff for such services the sum of $17.15, and such employment and services were entirely independent of the employment and services described in the pleadings in this action. Soon after March 1st the plaintiff received from the defendant's testator $17.15, and signed and delivered a receipt, as follows: The defendant insists that by such payment as evidenced by said receipt the plaintiff's demand as alleged in the complaint has been paid and satisfied, and also that said payment constitutes an accord and satisfaction of all accounts and demands held by the plaintiff against the testator. The receipt of the $17.15 was not a payment of anything other than the balance unpaid upon the account for services prior to October 7, 1904, and, it being for an amount concededly due and unpaid on such independent contract, it was not an accord and satisfaction of another disputed and unliquidated claim.
The payment of an amount less than that for which the debtor is liable does not constitute a valid accord and satisfaction, unless there is a bona fide dispute as to the debtor's liability or as to the amount due from him. In case a payment of a part of a demand is received in full settlement thereof, the concession by each party is a consideration for the concession by the other. The payment of an admitted liability is not a payment of or a consideration for an alleged accord and satisfaction of another and independent alleged liability. Ryan v. Ward, 48 N. Y. 204, 8 Am. Rep. 539;Nassoiy v. Tomlinson, 148 N. Y. 326, 42 N. E. 715,51 Am. St. Rep. 695;Laroe v. Sugar Loaf Dairy Co., 180 N. Y. 367, 73 N. E. 61. An accord and satisfaction requires a new agreement and the performance thereof. It must be an executed contract founded upon a new consideration. Nassoiy v. Tomlinson, supra; Jaffray v. Davis, 124 N. Y. 164, 26 N. E. 351,11 L. R. A. 710;Kromer v. Heim, 75 N. Y. 574, 31 Am. Rep. 491;Fuller v. Kemp, 138 N. Y. 231, 33 N. E. 1034,20 L. R. A. 785. A receipt may be modified, explained, or contradicted by parol. Komp v. Raymond, 175 N. Y. 102, 67 N. E. 113. The testimony relating to the payment of said $17.15 and the written receipt given at such time were properly received in evidence upon the question at issue relating to the contract of hiring for the term described in the pleadings.
[5] We are, however, of the opinion that the...
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