
    Bowery Bay Building and Improvement Company, Respondent, v. Rossiter, MacGovern & Company, Appellant.
    Second Department,
    June 15, 1906
    Accord and satisfaction—when part payment received by- seller does not constitute accord and satisfaction.
    A vendee purchased a machine at an agreed price independent of j accessories, and thereafter, finding an accessory of 'the machine defective, sent the vendor a check-less the value :o£ the accessory, stating “ we are compelled to deduct same from the purchase price.” The check was used -by the vendor, who however,, notified the vendee that he must pay the balance. jBeld, that as the sum due the vendor was set by the terms of the contract, there was no accord and satisfaction; '
    That the meeting of the minds essential to an-accord and satisfaction w^as wanting,, and that there was no.consideration to support a -contract of settlement.
    / Appeal by the defendant, Rossiter,. MacGovern -& Company,, from a judgment of the Municipal .Court in favor of the plaintiff..
    
      William L. Mathot, for the appellant.
    
      W. J. Foster, for the respondent.
   Woodward, J.:

The plaintiff brought this action to recover the balance of $133 alleged to be due the plaintiff on the sale to the defendant of one fifty-horse power, two-phase sixty cycle electric motor, sold and delivered to the defendant for the sum of $400. The answer made a general denial, alleged fraud, breach of contract, payment and accord and satisfaction, but the issue tried and determined was that of accord and satisfaction. The plaintiff introduced evidence showing the sale of the motor to the defendant at the agreed price of $400. It appears that there was some negotiation in reference to an auto-starter, and that. the same was delivered to the defendant at the same time with the motor, and the defendant’s theory is that this auto-starter was an essential element iof the contract of sale, and the same being found to be out of repair to such an extent as to be practically of. no value, the defendant attempted to withhold a sum sufficient to purchase a new auto-starter, and the alleged accord and satisfaction is based upon a "letter from the defendant, inclosing a check, which was retained by the plaintiff, this action being brought for the balance of. the purchase price of the motor. This letter, aside from its formal parts, reads: “We have a report from our factory, and they advise us that the auto-starter for the 50 HP, 2-phase, 60 cycle, Type O., Westinghouse motor we purchased from you is burned out and damaged beyond repair. In other words, the expense of repairing this auto-starter'for service would be greater than the cost of a new one, to say nothing of the loss of time. We have, therefore, decided to purchase a new one. The net price to us from the G-. E. Go. for same auto-starter is $133.00. We are , very sorry indeed to find that there is this damage, and that we are compelled to deduct same from the purchase price of the unit. Please find inclosed check less cost of auto-starter. We are not deducting express' charges of this starter from the factory to destination, although- we have to pay same.”

The plaintiff used this check, and although there was a conflict of evidence as to whether the auto-starter was really any part of the transaction on which the plaintiff sues, and the weight of evidence is wholly with the plaintiff, it is urged that this constitutes an accord and satisfaction. The learned court must have found from the evidence that the defendant purchased the motor at an agreed price of $400, independently of the auto-starter. This being the obvious ,fact, there was no unliquidated claim existing between the parties; the defendant owed the plaintiff $400 under a contract. There was no dispute between them, and the check was not tendered as a payment in full upon a compromise of the controversy. The defendant elected to pay $267' on account of their contract, and they did not ask for a receipt in full, nor does their letter suggest definitely that they regard it as such a payment, and the fact that the plaintiff used the check,, and within two days notified the defendants that they must pay the balance of the $400, indicates that there was never such a meeting of minds as is essential to an accord and satisfaction, nor was thpre any consideration to support the new contract which is involved in such a settlement. A superficial reading of Nassoiy v. Tomlinson, (148 N. Y. 326) and the ca.se relied upon there, might seem to justify in some' measure the defendant’s position upon this ■appeal, but ■ the limitations suggested in the later case of Eames Vacuum Brake Co. v. Prosser (157 id. 289, 299) completely destroy the authority of the earlier case for the defendant under the facts disclosed by the record, and the judgment appealed from should not be interfered with by this court.

The judgment appealed from should be affirmed, with costs.

Hirschberg, P. J., Jenks, Hooker and Miller, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs. .  