Universal Talking Mach. Co. v. Rosenfield

• Citation: 141 Mo. App. 621,125 S.W. 524
• Parties: UNIVERSAL TALKING MACH. CO. v. ROSENFIELD
• Decision Date: 07 February 1910
• Court: Court of Appeal of Missouri (US)

125 S.W. 524

141 Mo. App. 621

UNIVERSAL TALKING MACH. CO. v. ROSENFIELD

Kansas City Court of Appeals, Missouri.

February 7, 1910.

Rehearing Denied February 21, 1910.

ACCORD AND SATISFACTION (§ 4)—ACCEPTANCE OF CHECK FOR BALANCE.

Defendant, who was agent for sale of plaintiff's goods, gave up its agency, returned the goods unsold, asserting the right to do so, and inclosed a check for balance on account. Plaintiff retained the check, giving a receipt for the sum, to which was added: "As soon as goods are received we will give you credit for same." Held that, by the acceptance of the check, plaintiff accepted the conditions under which it was sent, and is precluded from afterward denying defendant's right to return the goods.

Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

Action by the Universal Talking Machine Company against Louis Rosenfield. Plaintiff had judgment, and defendant appeals. Reversed, with directions.

Cooper & Wilson, for appellant. Ellis, Cook & Barnett, for respondent.

ELLISON, J.

Defendant, residing in Kansas City, Mo., owed the plaintiff, who resided in Chicago, Ill., an account for goods, wares, and merchandise of $438.56. He claimed the right to return the goods unused, and so on the 30th of January, 1907, he wrote to plaintiff the following letter: "At the time I took your agency, it was agreed with your representative that I could give it up at any time I wished and return any goods that I might have on hands, and since our talking machine business is growing so I cannot give the Zonophone machines and records justice, so have decided to give up the agency and return the records and machines. Same were returned to you yesterday by the Santa Fé, as per inclosed B-L. The amount returned was $375.00, and inclosed you will find check for balance, $63.56." Plaintiff retained the check, cashed it, and sent a written receipt for the same to which it added: "As soon as goods are received we will give you credit for the same." Several weeks afterwards, on the 7th of March, 1907, plaintiff wrote to defendant denying his right to return the goods, and stating they were held for his order. Afterwards plaintiff instituted this action claiming judgment for the amount of the account, less $63.56, the amount of defendant's check, and recovered judgment therefor in the trial court. Defendant appealed.

We think the judgment should have been for the defendant. His letter asserted two things, both of which plaintiff...