
    DOBBS v. NATIONAL SPICE CO.
    (Supreme Court, Appellate Term.
    April 8, 1909.)
    Accord and Satisfaction (§ 12)—What Constitutes.
    Where, after an assignment for benefit of creditors was made, the assignee sold goods to a creditor of the assignor, and an employe sent the creditor a statement of the amount of the purchase, with a credit of the amount of his claim against the assignor, and he paid the balance shown to be due, receiving back the statement, marked “Paid,” the payment was in full satisfaction and discharge of the entire indebtedness, in the absence of fraud or mistake, or a showing that the deduction of the creditor’s claim was a preference as against other creditors.
    [Ed. Note.—For other cases, see Accord and Satisfaction, Cent. Dig. §§ 92-97; Dec. Dig. § 12.*]
    
      Appeal from Municipal Court, Borough of Manhattan, Fifth District.
    Action by Charles G. Dobbs, assignee of Stallman & Fulton Company, against the National Spice Company. Judgment for defendant, and plaintiff appeals. Affirmed.
    Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.
    Goeller, Shaffer & Eisler, for appellant.
    Thomas G. Prioleau, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

There is no dispute as to the facts. Defendant was a creditor of the Stallman & Fulton Company to the extent of $63.80 on February 21, 1908, on which day the said company made an assignment for the benefit of creditors to plaintiff, who duly qualified* as such assignee. On April 23, 1908, the plaintiff, as such assignee, sold and delivered to defendant goods of the value of $141.12; and on June 1, 1908, some one in plaintiff’s employ sent the following statement to defendant:

Charles G. Dobbs, Assignee for Stallman & Fulton Co. National Spice Company.

1908

April 23rd. Mdse................................................. §141 12

Cr.

Feb’y 24th. Balance old acc....................................... 63 SO

§ 77 32

Defendant, on June 4,1908, sent its check for $77.32 to plaintiff, who collected the money on said check, and thereafter defendant received the bill, stamped “Paid,” from plaintiff in return for said check. Thereafter, and in January, 1909, plaintiff commenced this suit to recover $63.80 as balance claimed to be due for the merchandise sold and delivered on April 23, 1908. The defense is that the $77.32, paid by check as above stated, was in full satisfaction and discharge of the entire indebtedness. The court found for defendant. Plaintiff appeals.

There is no allegation in the complaint of fraud or mistake with regard to the above-mentioned statement, which statement is entirely ignored by said complaint; nor was there any evidence produced at the trial of fraud or mistake, since plaintiff’s testimony as to the deduction in the statement having been an error was stricken out without objection, while plaintiff admitted that his assignor was indebted to defendant in the sum of $63.80 at the time the goods were sold and at the time the statement was sent. The effect of the deduction of $63.80, as aforesaid, might be to create a preference in favor of the defendant as against the other creditors of the plaintiff’s assignor; but, as there is nothing in the case to show this, it may be presumed that there was none, and therefore the decision of the lower court was correct.

. Judgment affirmed, with costs to the respondent.  