Le Page v. Lalance & Grosjean Manufacturing Co.

a factory building, upon which bill the sum of $1,165 has been paid. The services were rendered by the plaintiff to the defendant, and a bill was rendered after the completion of the work in October, 1899, for the $4,000, less payments made on account aggregating $400. The defendant disputed the bill in good faith, writing to the plaintiff that it would neither recognize nor pay the same, stating that the correct amount due and owing was only $765 for which amount a check to the plaintiff’s order was inclosed, and adding that “ we tender our check in full satisfaction of the matter in controversy. If same is not satisfactory, and you desire to institute legal proceedings, we beg to inform you that our attorneys, Mess. Hasten & Hichols, Ho. 49 Wall St., this city, are authorized to accept service of summons and complaint.” This was under date of December 8, 1899. Upon receipt of the check the plaintiff cashed it and used the money, never replying to the letter so far as appears. The action was commenced more than three years after-wards, viz., on April 1, 1903, and an accord and satisfaction was set up among the defenses.

The acceptance and retention of the check constituted a complete accord and satisfaction, leaving no right in the plaintiff of any further recovery upon his disputed claim. (Laroe v. Sugar Loaf Dairy Co., 87 App. Div. 585 , and cases cited.) This is true equally whether the claim is to be regarded as liquidated or unliquidated, the dispute between the parties as to the amount of the indebted-, ness being a genuine one. The learned counsel for the appellant contend that the case is within the rule asserted in Mack v. Miller ( 87 App. Div. 359 ) to the effect that statements inviting a reply contained in a letter inclosing a check for less than the amount claimed for services rendered, if not replied to, will operate to prevent the use of the check from effecting an extinguishment of the claim. It is to be noted, however, that in that case the letter inclosing the check did not state that it was sent in full satisfaction of the claim. Moreover, the letter contained statements which not only invited but elicited a reply from the creditor repudiating the idea of an acceptance in full, and alleging that the payment would be applied only on account, and it was because the reply received no response that the court held that the creditor was free to use the check on account, and that the debtor by his silence must be deemed to halve

acquiesced in the proposed limited application of it. Here, how-ever, the fact was distinctly stated in the letter that the check was tendered in full satisfaction of the claim, and no reply was invited. On the contrary, the plaintiff was informed that if the check was not satisfactory as a payment in full he could at once sue upon his claim, and that the defendant’s attorneys would accept service of process. The alternative presented was the acceptance of the check in full as a satisfactory remittance upon that condition, or the commencement of a lawsuit to test the plaintiff’s right to the full amount claimed, in the event that he was unwilling to accept the smaller sum, coupled with the assurance that the determination of the issue would be expedited by the defendant’s voluntary appearance in the action. By using the check under such circumstances, without protest or objection, the plaintiff must be deemed to have elected to accept the amount tendered upon the condition which accompanied it, and he could not years afterwards maintain an action upon the demand which such acceptance served to extinguish under all the authorities. Even assuming, although of course we do not so decide, that he might at the time of the remittance have used the check and also have sued at once for the balance claimed, good faith at least required such prompt action, and the long delay might very well be regarded as the additional manifestation of an intention to accept the check in full payment and not to sue, and, therefore, as sufficient in itself to establish such a meeting of the minds of the parties on the question of an accord and satisfaction as would necessarily operate to defeat a right of recovery so long subsequently asserted.

The dismissal of the complaint upon the merits was fully justified by the undisputed proof, and the judgment should be affirmed.

Judgment unanimously affirmed, with costs.