Roebuck & Co. v. Langer Transp. Corp..., 425.
| Decision Date | 03 February 1943 |
| Docket Number | No. 425.,425. |
| Citation | 30 A.2d 56,129 N.J.L. 490 |
| Parties | SEARS, ROEBUCK & CO. v. LANGER TRANSPORT CORPORATION. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
Action by Sears, Roebuck & Company against Langer Transport Corporation on a book account for goods sold and delivered, wherein a counterclaim was filed. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Appeal from District Court, First District, Hudson County.
October term, 1942, before BODINE, HEHER, and PERSKIE, JJ.
Nathan Baker, of Hoboken, for appellant.
Rosen & Rosen, of Union City (James Rosen, of Union City, of counsel), for respondent.
Plaintiff sued on a book account for goods sold and delivered; and defendant counterclaimed for the price of trucking services rendered as a common carrier at the rates prescribed by the Interstate Commerce Commission. The District Court Judge, sitting without a jury, awarded plaintiff judgment for the amount claimed in the state of demand, and dismissed the counterclaim.
The first point made is that the proofs conclusively established an accord and satisfaction, and so it was error to enter judgment for plaintiff. It is grounded upon the fact that the check assertedly given in satisfaction of the accord contained a notation on its face that it was ‘in settlement’ of the subsisting account of $382.62, ‘less allow's' of $72.10 and a ‘contra acct.’ of $72.83, plus ‘deposit on drums' of $4., or a net balance of $241.69, the amount of the check. It is said that the check reveals on its face that it was tendered in ‘full settlement of the respective claims of the parties against each other,’ and was ‘of such a character as to give the plaintiff notice that it must be accepted in full satisfaction of the claim or not at all,’ and that plaintiff's ‘retention and use’ of the check constituted an accord and satisfaction.
[1] But the check was delivered to plaintiff's ‘credit and collection manager’ at defendant's place of business, in response to demands for payment; and the judge found, and there was evidence to sustain the finding, that it ‘was accepted with the express understanding’ that it was but ‘a payment on account’-‘a partial payment.’
To be effectual in law, an accord must partake of the elements of an enforceable contract, i. e., among others, an aggregatio mentium, or a meeting of the minds of the parties, and a consideration in the legal sense. Decker v. Geo. W. Smith & Co., 88 N.J.L. 630, 96 A. 915; Kissell v. Myer & Bush Co., 96 N.J.L. 513, 115 A. 378; Union Cleaners & Dyers, Inc., v. Zeidman, 113 N.J.L. 86, 172 A. 546; Haynes Auto Repair Co. v. Wheels, Inc., 115 N.J.L. 447, 180 A. 836; Levine v. Blumenthal, 117 N.J.L. 23, 186 A. 457, affirmed 117 N.J.L. 426, 189 A. 54.
If the subject of an accord and satisfaction is a disputed claim or demand, even though liquidated or certain in its general characteristics, the settlement of the controversy of itself gives rise to...
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