This action was brought to recover for the balance due under an alleged contract and also for extra work connected with the making by plaintiff of 20 automobile bodies on defendant’s order.
A prior judgment in favor of plaintiff was reversed by this court. 143 N. Y. Supp. 1036. Nothing has appeared in this case to warrant any change in our views there expressed, and they apply to the record now before us.
It seems quite plain that defendant established an accord and satisfaction.
Respondent urges that the letter and check which evidenced the accord and satisfaction are insufficient because a considerable part of the claim is for extra work, and because the settlement is spoken of in defendant’s letter as being “in accordance with the contract.” The answer to this contention, however, lies in the fact that defendant disputed the claim for the extra work; that it was at the time one of the items in controversy; and that the acts of the parties must be interpreted, not by. what plaintiff claims he would like to understand, but what was the plainly expressed intention.
Defendant wrote;
“We inclose our check for 8132.59 together with a statement showing our entire indebtedness to you on the Cimbel bodies.”
And the check was indorsed:
“In full settlement as per contract, 8132.59.”
Judgment reversed, with costs, and’complaint dismissed, with costs. All concur.