
    Snow, Church & Company, Respondent, v. William Reichman, Appellant.
    (Supreme Court, Appellate Term,
    October, 1896.)
    1. Accord and satisfaction — Knowledge of material facts.
    If. a claim is unliquidated, the acceptance of a part and the agrees. ■ ment to cancel the whole support an accord and satisfaction. • But in such a transaction the minds of the parties must meet, and there' . must be no ignorance of material facts on the side of one party, nor" any concealment upon the part of the other. •
    2. Same.
    The defendant had put certain claims against other persons into the hands of a collecting agency, and three years later an agent of the' plaintiff called upon the defendant with a bill for a commission of three dollars, earned upon subsequent collections; " The defendant said he would pay it if the agent would give him a receipt in full of all claims to date. The agent supposed that this was .the only account which'his principal had against the defendant, and believing this to be the fact he gave a receipt in frill, and the defendant gave to the collector a check for three dollars, upon which was written a statement that it was in full of all claims. The plaintiff had opened new books, and they did riot contara any record of the charge for the collections of the old claims intrusted by the defendant to the plaintiff. Held; that, as there was ignoranc'e of the material facts upon the part" of the plaintiff, and, probably, concealment of them upon the part of .the defendant, an accord and satisfaction was not made out.
    Appeal by defendant from a judgment of -the Ninth District Court in favor of the plaintiff, for $44.66 for commissions on certain accounts given to the plaintiff by the defendant for collection.
    Gustav R. Hamburger, for appellant.
    Harry L. Maxson, and Campbell, Ford & Hance, for respondent;
   Daly, P. J.

This action is brought by a collection agent to recover aggregate commissions'for collecting claims. ' The amount claimed was $34.69, and the defendant, disputed liability on the ground that the claims were withdrawn before the plaintiff bad. taken'any steps to collect them, and that there had been an accord and satisfaction between the parties. ...

It appeared that the last item .of commissions sued for accrued about February 25, 1891, and that on September 4, 1894, a collector of the plaintiff called upon the defendant with a bill for another commission of $3 upon subsequent .collections, as to which there was no dispute. According to the plaintiff’s evidence the defendant offered to pay it if the collector would give him a receipt in full of all claims to date, which the latter did, saying to the defendant- that he supposed this was the only account plaintiff had against him, otherwise they would have rendered a statement; and then the defendant,- without disclosing to the collector the existence of the disputed, claims, took the receipt in full and gave the collector a check for $3, on which was written a-statement that it was in full of all ' claims. This check was indorsed by the plaintiff’s cashier, and was deposited and retained. There was no evidence that the'plaintiff saw it or knew of the receipt in full, or that the cashier knew of the prior disputed claims.

Defendant claims that there was an accord- and satisfaction of the demands now sued upon under the authority of Fuller v. Kemp, 138 N. Y. 231, and Nassoiy v. Tomlinson, 148 id. 326, which hold that if a claim is unliquidated, the acceptance of a part and the agreement to cancel the entire debt furnishes a new consideration, founded on the compromise, which will support an accord and satisfaction; and so where a. debtor offers a certain sum of money in full satisfaction of such a demand, and the creditor accepts and retains the money, his claim for the same is canceled.

But in order to make out the defense of accord and satisfaction, the proof must be clear and unequivocal that the observance of the condition is insisted upon, and where a check is tendered it must' clearly appear that it was received and retained by the creditor with the knowledge that it is acquired in settlement of a disputed claim. In this case the check was the exact amount of the bill rendered, and which was not disputed. Upon a conflict of testimony between the collector and defendant as to what occurred when that bill was presented, the finding of the justice establishes that the collector’s version of the interview was correct. He denied the testimony of the defendant that there was anything said about any other account or moneys due, or any waiver of claims for other alleged collections. It was explained that the plaintiff had opened a new set of books, to which the old accounts were not transferred, and which show only the new account for which the bill for $3 was rendered, so .there was nothing to call the attention of the cashier to the other accounts, and the check for $3 was not received and retained by him with notice that it was tendered in settlement of any disputes* This fact distinguishes the case from the authorities relied upon by the appellant.

Here the receipt in full was given and the check, received and retained in ignorance of the fact on the part of the plaintiff’s agents and — as the justice must have found — a concealment of the fact on the part of the defendant. There was, therefore, no meeting of the minds of the parties and no agreement, express or implied, upon which alone the defense of accord and satisfaction must rest. Had an explanatory letter been sent with the check, as in the case of Fuller v. Kemp, and Nassoiy v. Tomlinson (above), the case might have been different! ' Merely writing the words “ in full of all claims ” on the check did not advise the plaintiff’s agents of a tender of that sum in settlement of disputed claims, since the amount of the check was the exact amount of the bill which had been rendered.

The judgment is affirmed, with costs.

McAdam and Bischoee, JJ., concur.

Judgment affirmed, with costs.  