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Downey v. McGinn

1 N.Y. City Ct. Rep. 478 Court New York Marine Court. Trial Term English

Delivered by McAdam, J.

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p. 478
New York Marine Court. Trial Term
June, 1882.
DANIEL J. DOWNEY, Receiver, &c., of JOHN HOGAN, against PAUL McGINN.

Headnote

The settlement of ¡i disputed account at any sum the parties fix upon is a good accord and satisfaction, but an error of addition in figuring up the account does not conclude the parties, although a receipt in full has been given, and the amount of the error in the addition (uot having been considered in the settlement) may be recovered.
Charles Blctndy, for plaintiff.
A. Cardozo, for defendant.

The receipt signed “February 19, 1877. Received payment in full. John Hogan,” is conclusive as to the item of $368, which constitutes the difference between $1.10 and $1.12 per foot for 18,153 feet of bridge stone. Maginn claimed that he had agreed to pay only $1.10 and Hogan claimed $1.12. The account was to this extent disputed, and the par

p. 479
ties had the right to adjust it in the way they did. (Cook v. Knapp, 8 N. Y. 402 ; Palmenton v. Hoxford, 4 Den. 166 ; Pierce v. Pierce, 25 Barb, 243 ; Neary v. Bostwick, 2 Hill. 514 ; and 1 Den. 257 ; 14 Wend. 116 ; 46 N. Y. 640 ; 10 Id. 445). But the error of addition presents a different question. The bill calls for 18,153 feet of bridge stone at $1.12, and the gross amount is figured out at $20,251.38. It really figures out . . . . . . . $20,331.36

Deducting the figures on the bill . . 20,251.36

Leaves an error in plaintiff’s favor of $80.00

This discrepancy appears on the face of the bill. Assuming, as I must, that both parties acted upon the assumption that the computation and figures were correct, a mutual error of fact is established as to the $80 aforesaid, in respect to which the receipt is not conclusive (See Williams v. Carrington, 1 Hilt. 515). The principle is founded in the rule, that if parties believing that a certain state of facts exists, come to an agreement with such belief for its basis, on discovering their mutual error, they are remitted to their original rights ( 4 Ind. 43 ; 40 N. Y. 391 ; 4 Bosw. 337 ; 7 Mich. 325 ). The motion to dismiss the complaint will be denied, and the action allowed to proceed as the $80 only.

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