
    No. 884
    SCHWARTZENBERG v. MAYERSON
    U. S. Appeals, 6th Circuit
    No. 3981.
    Decided Nov. 7, 1924
    17. ACCORD AND SATISFACTION—Creditor estopped to deny that check was accepted in full payment of disputed claim where check indorsed “in full payment to date,” is accepted and deposited to credit of creditor.
    Attorneys—Calfee, Fogg & White and A. O. Dickey for Sehwartzenberg; Griswold, Green, Palmer & Hadden for Mayerson; all of Cleveland.
   DONAHUE, C. J.

Fred Sehwartzenberg gave to the L. Mayer-son Company an order for fish to be shipped each week in carload lots of 100 boxes of 100 pounds each. The first carload contained 152 boxes with a total weight of about 20,320 pounds. The fish when they reached Cleveland, were in a bad condition, and the food inspector ordered this shipment destroyed, although Sehwartzenberg made an effort to save the fish by freezing them.

Sehwartzenberg refused to pay the draft covering the invoice price of these fish and sent a telegram to the Mayerson Co. advising them not to send any more white fish. Before this telegram was received another carload was shipped totalling 29,690 pounds. Schwartzen-berg refused to handle this shipment. Several other small shipments were made which were claimed by Sehwartzenberg to have been spoiled due to delay in shipment.

Upon refusal of Sehwartzenberg to pay for any of the shipments including the small shipments, one Smithen, manager of the Mayerson Co. came to Cleveland from Canada where the Company is located, and was given a check for $518.69, on the face of which was indorsed “In full to date.” The Company informed Schwart-zenberg that the check could not be accepted “in full to date” but simply accepted it in full for the small shipments. Sehwartzenberg asked the return of the check if it was not to be in full to date, as it was entirely a donation; none of the fish bringing even express charges.

The Company deposited the check to its account, and denied having received the letter of Sehwartzenberg demanding the return of the check if it was not desired to be taken on the “in full to date” basis. At all events the Company brought an action against Schwart-zenberg for the full invoice price of the other fish shipped. Sehwartzenberg pleaded accord and satisfaction, but judgment was rendered in favor of the Company. Error was prosecuted by Sehwartzenberg and the Circuit Court of Appeals held:

1. Under the state of the proof, i. e., that one carload alone aggregated 29,690 pounds, almost three times as much as Sehwartzenberg had ordered for any one week; and that he refused to accept this second carload or handle it for the account of the Mayerson Co., and that after such refusal the Company ordered this carload forwarded to Buffalo; the jury such have been instructed that the Mayerson Co. could not recover from Sehwartzenberg all or any part of the invoice price of the second car.

2. Substantial evidence was offered to prove that there was a bona fide dispute in reference to the smaller shipments, and that by reason of the fact that they were delayed in shipping and that the fish were not in good condition when they reached Cleveland.

■ 3. Sehwartzenberg made the proposition to Smithen that he would pay the full amount claimed for the smaller shipments and release or assign to the Company his claim against the express company for $1200 express charges on the first car if the Company would release him from further liability. Smithen agreed to accept this proposition and thereupon was given the check.

4. Under the admitted facts and circumstances of the case the Mayerson Co. can not be heard to say that the check was not accepted by it in full satisfaction of all its claims against Sehwartzenberg.

5. The contract of settlement was clearly an Ohio contract and the fact that the check was later deposited by the Mayerson Co. in a Canadian Bank does not make it a Canadian contract.  