Pitts v. National Independent Fisheries Co.

• Decision Date: 03 April 1922
• Docket Number: 10253.
• Parties: PITTS v. NATIONAL INDEPENDENT FISHERIES CO.
• Court: Colorado Supreme Court

206 P. 571

71 Colo. 316

PITTS v. NATIONAL INDEPENDENT FISHERIES CO.

No. 10253.

Supreme Court of Colorado

April 3, 1922

Rehearing Denied May 1, 1922.

Department 1.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Action by the National Independent Fisheries Company against James Pitts. From a judgment for plaintiff, defendant brings error.

Affirmed.

Howard L. Honan and W. Felder Cook, both of Denver, for plaintiff in error.

Ellis Robinson & Sarchet and Daniel B. Ellis, all of Denver, for defendant in error.

ALLEN J.

This is an action by a seller against the buyer, to recover for goods sold and delivered. The answer pleads payment, and also sets up a plea of accord and satisfaction. A trial to the court resulted in findings for plaintiff, and a judgment in its favor for $978.43. The defendant has sued out this writ of error, and the cause is before us on his application for a supersedeas.

The plaintiff in error, defendant below, contends that the court erred in not finding that there had been an accord and satisfaction.

The plaintiff below sold and delivered to defendant various quantities of fish, at different times between February 20 1920, and May 1, 1920. There was some dispute between the parties, at about the date last mentioned, as to what deductions, credits, or allowances should be given to defendant. On May 8, 1920, the defendant mailed to plaintiff a check for $692.35. When the check was introduced in evidence it bore the notation, 'in full to date.' The plaintiff, in its evidence, denied that the notation appeared on the check at the time it was received. The trial court held that, whether the notation appeared thereon at such time or not, the defendant did not establish his defense of accord and satisfaction. The defendant now contends that the court could not dispense with a finding as to the existence of the notation, because, as he claims, the notation, 'in full to date,' of itself proves an accord.

In Worcester Color Co. v. Wood's Sons Co., 209 Mass, 105, 95 N.E. 392, the court said:

'It is not every use of the words 'in full to date' or equivalent phrase, which constitutes an accord and satisfaction in connection with the payment of a controverted claim. Many cases have arisen where the conditions have been such as make it a question of fact whether there has been an accord and satisfaction, even though these words have been used where a payment has been made.'

In the instant case, the check accompanied a letter to plaintiff. The amount of the check corresponded exactly to the last four bills for goods which defendant had received,...