Dissenting Opinion,
Williamson, C. J.I would sustain the motion for new trial.
*247The following facts, in addition to those stated in the opinion of the court, seem to me of significance.
(1) The itemized statement enclosed with defendant’s letter of November 4, 1954, was in the form of a bill rendered by the defendant to the plaintiffs for six numbered items, with amounts stated totalling $813.43.
(2) On November 8, 1954, in reply to the defendant’s letter of November 4, the plaintiffs wrote the defendant denying liability on all claims, except one item for $5, and refusing to make any claim against the government.
As I read the record, the only permissible inference points to an accord and satisfaction.
First: The $1400 check sent by the defendant to the plaintiffs with the letter of February 11, 1955, was offered only on condition that it be taken in full payment. In substance, we have here the every day situation in which the debtor deducts a disputed item from his creditor’s bill and remits the balance in full settlement. The unusual feature in this case lies in the fact that the plaintiffs’ claim comes from an admitted overpayment on the contract price given and received by the parties in error and first discovered by the defendant. The opportunity to withhold the disputed claim from moneys admittedly due the plaintiffs arose from this error. The application of the general principles of accord and satisfaction are not of course altered by this fact.
Second: The condition, i.e., that the check must be taken in full payment, ought reasonably to have been understood by the plaintiffs, and hence they are bound thereby.
The plaintiffs obviously did not intend to receive the $1400 check in full payment. Mr. Farina, one of the plaintiffs, said to the Treasurer of the defendant corporation, on receiving the check, “so far as I was concerned it was not to be considered payment in full.” There is in the record, how*248ever, no evidence to warrant a finding that the defendant waived the condition on which the check was sent. The conversation between Mr. Farina and the Treasurer clearly-constituted no change in the position of either the plaintiffs or defendant.
The law gave the plaintiffs the choice of accepting the check on defendant’s terms or of returning it. The plaintiffs chose neither permitted course, but denied the condition and cashed the check. They cannot, in my opinion, properly complain that they were bound by the condition of acceptance in full payment. See 6 Williston, Contracts §§ 1854, 55, 56 (rev. ed.); Corbin on Contracts §§ 1279, 80.
I am authorized to state that Mr. Justice Sullivan concurs in this dissenting opinion.