DeLevante v. MacPherson ( 1929 )

Judgment reversed upon the law and the facts, with costs, and complaint dismissed, with costs. The action was brought to recover for services under a contract. The defendants pleaded as a separate defense an accord and satisfaction, in that plaintiff accepted and received preferred stock in the defendants’ company in full satisfaction and discharge of plaintiff’s claim. This defense was replied to and denied. Plaintiff’s pleadings make no claim that the accord and satisfaction was obtained by fraud and plaintiff does not ask the rescission of the contract. Upon the trial it was shown, and the court found, that plaintiff had accepted preferred stock in satisfaction of his claim as pleaded by defendants. Plaintiff cannot recover upon such pleadings. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Kapper, Hagarty, Seeger and Carswell, JJ., concur; Lazansky, P. J., concurs in result. Settle order on notice.