
    Fraser C. Fuller, Resp’t, v. Edward Kemp, Jr., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 4, 1891.)
    
    Accord and satisfaction—Assent necessary.
    Upon presentation of a "bill for professional services for which no rate: of compensation had been previously agreed upon, defendant sent a check for a less amount in the usual form accompanied by a letter stating that it was in full satisfaction of the claim. Plaintiff cashed the check and retained the proceeds, and rendered a bill for the former amount, crediting the amount of the check and insisting on payment of the balance. Held, that this did not constitute an accord and satisfaction, as from the facts there could be no inference that plaintiff at any time assented to a proposition to receive the check in full satisfaction.
    Appeal from, judgment for plaintiff, a physician, in an action brought to recover for professional services, the defense being an. alleged accord and satisfaction.
    
      R. Floyd Clarke, for app’lt; Henry Thompson, for resp’t.
   Bischoff, J.

The facts, so far as they appear from the agreed statement made for the purposes of the trial, are as follows: Plaintiff, a physician, performed services as such at the request of the defendant, without any express previous understanding as to-the rate of compensation to be charged and paid. For these services plaintiff rendered a bill amounting to $670, on receipt of which defendant wrote to plaintiff expressing surprise at the amount, requesting him to give the matter his attention and to send a corrected bill. In compliance with this request plaintiff rendered an itemized bill, the footing of which was, as before, $670. Thereupon defendant wrote plaintiff as follows: “I enclose my check for $400 in full satisfaction of your claim for professional services against me to date. The deductions I have made have been in the instances when you have charged me five, four and three visits per day at full rates. I trust that you will view the matter in the same spirit in which I do, which is to fix a figure which will be entirely just to you and to myself. I have arrived at the within conclusion only after careful and earnest, thought.” Accompanying this letter was defendant’s check for $400 to plaintiff’s order in usual form and bearing no endorsement indicating that its use by plaintiff was intended by defendant as an acceptance of the amount in satisfaction of the claim for services. On receipt of the last mentioned letter plaintiff again rendered a bill to defendant for the former amount, crediting defendant with a payment of $400 on account and insisting upon payment of the balance.

The check was endorsed by plaintiff and the amount thereof received and retained by him. To plaintiff’s last bill defendant replied by letter as follows: “I forwarded check for $400 to-your order enclosed in my letter of March 13, 1889, upon the express condition therein named, that the same was enclosed as payment in full satisfaction of your claim for professional services against me to date. I do not recognize that you have the right, to retain the amount so offered upon that distinct understanding and yet repudiate the condition of the offer. Either keep the money upon the condition named or return same to me by return mail.” Plaintiff did not return the amount of the check, but brought this action for the balance claimed by him to be due.

Under his defense of accord and satisfaction the defendant relied upon the foregoing facts as a bar to plaintiff’s recovery, and. it was agreed between the parties that for the purposes of that defense the value of plaintiff’s services should be taken to have been $570, and that neither party should be awarded as against 'the other, either the costs of the action or of any appeal from the judgment to be entered therein.

The learned trial judge held the facts insufficient to support an accord and satisfaction and directed judgment in favor of plaintiff for $170, from which defendant now appeals.

The question presented to us for solution upon the facts submitted is not whether the plaintiff may lawfully retain the check and yet refuse compliance with the condition upon which it was tendered, but whether the retention and use of the check by the plaintiff, notwithstanding its conditional tender by the defendant, operated as an acceptance thereof in satisfaction of plaintiff’s demand contrary to his expressed and unequivocal refusal so to receive it.

An accord and satisfaction is the substitution of a new agreement between the same parties in the place of the former one, and the execution of such new agreement by each of the parties thereto on his part, Lawson’s Rights, Remedies and Practice, § 2567, p. 4228; Am. and Eng. Ency. of Law, vol. 1, p. 94, “Accord and Satisfaction; ” Parsons on Contracts, vol. 2, p. 681, § 4; Kromer v. Heim, 75 N. Y, 574, and unless, therefore, the facts present the constituent elements of a valid new agreement the plea of accord and satisfaction is not supported. These elements are parties, subject matter, consideration and assent, Parsons on Contracts, vol. 1, § 3, p. 8, the existence of the last two being denied by the plaintiff.

Were we satisfied that the element of assent is not wanting, we would not hesitate to reverse the judgment appealed from, as the facts conclusively establish a sufficient consideration to support the alleged new agreement. Plaintiff’s demand was for an unliquidated amount and disputed in evident good faith by the defendant, and the forbearance of further dispute furnished a sufficient consideration for the acceptance of less than the sum first demanded. Chitty on Contracts, vol. 2, p„ 1127; Greenleaf on Evidence, vol. 2, § 28; Palmerton v. Huxford, 4 Denio, 166; Baird v. U. S,, 6 Otto (U. S.) 430. So also did the fact that defendant’s tender of a less amount than that claimed to be due was made in the form of his negotiable check import a sufficient consideration, and if it had been accepted by plaintiff in satisfaction such acceptance would have barred a further recovery. Any additional benefit, or even the possibility of a benefit to the creditor, which he receives with the acceptance of less than the full amount of an ascertained debt, in satisfaction thereof, is a sufficient consideration for the agreement to discharge the remainder of the debt. Jaffray v. Davis, 124 N. Y, 164; 35 N. Y. State Rep., 106. Sucia a benefit or possibility of benefit to the creditor will be presumed from the conversion of part of a simple contract demand into a negotiable check, promissory nqte or other security. Goddard v. O'Brien, L. R, 9 Q. B. Div., 37; 21 American Law Register (New Series), 637; Mechanics' Bank v. Huston, Pennsylvania Supreme Court, February 13, 1882, reported in 9 Weekly Flotes of Cases, p. 477; Sibree v. Tripp, 15 M. & W., 26: Green-leaf on Evidence, vol. 2, § 28.

We are, however, of the opinion that the facts fail to show plaintiff’s assent to defendant’s proposition that the check be received in satisfaction of the demand against him, and cannot, for that reason, arrive at the conclusion that the judgment appealed from was erroneously awarded.

“Assent ” is evidenced by a proposition emanating from one side and acceptance of it on the other, the proposition and acceptance together constituting what is sometimes called a “ meeting of the minds.” Was there a “meeting of the minds?” The application of the amount of the check in part payment and his insistence upon payment of the balance, were acts involving an emphatic refutation on plaintiff’s part of defendant’s proposition that the check be accepted in full discharge of his debt. True, assent may sometimes be inferred from conduct, Am. & Eng. Ency. of Law, vol. 3, § 33, p. 858; Wharton on Contracts, vol. 1, § 6, etc., but in the interpretation of a person’s contractual intentions we comprehend conduct to include the aggregation of the acts of a. person respecting the subject-matter of the alleged contract.

It would be manifestly unfair to single out one of a series of acts which standing alone would be indicative of an intention to assent, and to exclude from consideration all other acts which unequivocally point to refusal and unmistakably qualify the former. To do so would require the subjugation of the mind to unconscious acts and to render the latter more potent factors in the determination of a person’s contractual intention than his expressed will. Intention is a mental fact to be ascertained from expression by conduct or words, and it would be no less unfair to predicate a person’s intention upon one of a series of acts together forming his conduct respecting a particular matter to the exclusion of the others than it would be to adopt one or more words of a whole sentence expressing a particular intention as evidence of one in conflict therewith. The acts of endorsing and obtaining the money on the check were not inconsistent with plaintiff’s intention to apply the amount in part payment, clearly expressed by his subsequent act; and considered in the light of that act and his insistence upon payment of the balance, there can be no room for inference that plaintiff at any time assented to a proposition to receive defendant’s check in full satisfaction.

Whether he did so assent, or not, is a question of fact which, like other questions of fact, must be determined upon the evidence, and if the inference of assent arising from the act of retaining the check tendered in satisfaction, abstractly considered, is thereby refuted, the inference is rendered inexistent and the intention will prevail. Day v. McLea, 22 Q. B. Div., 610.

The judgment appealed from should be affirmed, but without costs as per stipulation.

Pryor, J., concurs.  