Dimmick v. Banning, Cooper & Co.

Citations

• 256 Pa. 295
• 100 A. 871
• 1917 Pa. LEXIS 603

Syllabus

<p>Contracts — Sale of cohe — Contract for year — Monthly deliveries —Maximum and minimum clause — Defenses—Accord and satisfaction — Payment—8 et-ojf.</p> <p>1. The mere fact that a creditor receives less than the amount claimed with knowledge that the debtor denies indebtedness beyond that amount, does not in itself constitute an accord and satisfaction. To establish accord and satisfaction payment should be offered in full satisfaction of the debt and be accompanied by acts and declarations amounting to an express notice that the payment is conditional and if accepted must be received in satisfaction of the claim.</p> <p>2. In an action for failing to deliver certain coke, as required by a-contract, it appeared that plaintiffs agreed to sell approximately 96,000 to 120,000 tons of coke during a period beginning July 1, 1911, and expiring June 30, 1912, shipments to be made in about equal monthly quantities of 8,000 to 10,000 tons as specified by the buyer. During the first five months the quantity ordered was less than the amount called for by the contract and during such time defendants made settlement with plaintiffs by paying an agreed price per ton on the basis of 8,000 tons per month, as damages suffered through defendant’s failure to order the minimum monthly quantity. In December, 1911, and during the remainder of the term of the contract defendants ordered a maximum of 10,000 tons per month. Plaintiffs failed to deliver the full amount ordered during such time. At the expiration of the contract defendants deducted from the final payment damages for such shortages and sent check for the difference. At foot of voucher was a receipt “in full for the above account,” followed by the words, “do not detach papers, please sign and return promptly.” Plaintiffs cashed check but did not sign and return attached receipt-, and subsequently wrote defendants requesting payment of balance. Upon defendants’ refusal to pay, plaintiffs brought suit; the defense was set-off,