I dissent from the conclusion reached by the court on the ground that upon the whole evidence, in view of the defendant’s obligation to show an accord and satisfaction by a preponderance of evidence, there was no question for the jury as to an accord and satisfaction of the claim in suit. The jury has found that the goods were worth the amount claimed in the complaint. The only attempted proof was that the value of those goods charged as of about $5,600, was only about $1,700, in addition to the $2,000 paid upon the bill. To prove an accord and satisfaction by a release of $3,200 of debt, with proof that the goods for which the debt was created, were worth substantially half that amount, requires clear evidence of the intention of both parties to make such cancellation.
The defendant had been paying her bills a part only at a single time, and it seems clear to me that the case is barren of evidence to show that the plaintiff, when she received the $2,000 upon the bill presented in April, 1921, intended otherwise than to accept such $2,000 as payment upon account and not as payment in full of the bill. The bill for the balance was repeatedly sent thereafter to the defendant without any intimation on the part of the defendant that she considered that the bill had been paid.
The plaintiff’s claim was proven by competent and reliable testimony as to the value of the articles sold, and if the goods had been worth less than the amount charged, the jury would naturally have so found, in view of the high prices at which the goods were charged. The error claimed in the charge was, therefore, harmless.
I, therefore, vote for affirmance.
Merrell, J., concurs.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.