Campbell v. Hurd , 81 N.Y. Sup. Ct. 235 ( 1893 )

PUTNAM, J.

Plaintiff brought this action to recover a balance due on an unsettled account. The defendant claimed an accord and satisfaction. The testimony in the case, however, shows an accord, but not a satisfaction. The accord is not a bar to a suit on the original cause of action. Bank v. De Grauw, 23 Wend. 342. The giving of the order by defendant’s agent on defendant was equivalent to defendant giving his own note for the claim in suit, which has been held not to be a satisfaction, (Person v. Civer, 29 How. Pr. 432, 438, 439,) although, if the order had been paid in full, it would have amounted to a satisfaction.

As there was no accord and satisfaction, I think it follows that plaintiff was not estopped by the new agreement or accord as to the amount of the recovery or otherwise. To hold that plaintiff can only recover the amount agreed upon by the accord is, in fact, to hold such accord binding upon him without satisfaction. In my view, there being no accord and satisfaction, the plaintiff can recover on the original claim in all regards as if the order by defendant’s agent on defendant had. not been given. It follows that the refusal of the learned referee to find that the settlement and acceptance “of a cash order by the plaintiff, and its acceptance by the defendant, fixed the amount of defendant’s liability under said contract mentioned in the complaint,” as requested by defendant,, was not an error. I have examined the various exceptions taken by the defendant on the trial, and think that neither of them requires a reversal of the judgment. I think, therefore, that the judgment should be affirmed, with costs.