Frequently inquiries are sent us inquiring as to the advisability of accepting checks marked “In full settlement of account to date,” etc. The situation is not the same in all States but usually the questions are covered in the doctrine of accord and satisfaction explained as follows:
If an account between two parties be actively and openly in dispute and the debtor sends to his creditor a remittance for a specific sum and states that such sum is offered in full settlement, and if such sum be accepted by the creditor he is bound thereby and cannot thereafter recover anything on the account from his debtor. The mere sending of a remittance, however, for an amount less than the amount due, where there is no dispute between the parties, does not affect the right of the creditor to bring suit for the balance due even though it is stated in the letter accompanying the remittance that said remittance is in full settlement.
The question as to whether a dispute is open or active can usually be easily determined. If the seller and buyer have been in correspondence regarding a dispute, that determines its activity, and if after such correspondence a remittance is made marked “In full settlement,” etc., the acceptance is binding.
ACCEPTANCE IN NEW JERSEY MAY BE AFFECTED BY STATUTE.
Our attention has been called to a law passed by the New Jersey Legislature in 1907, from which the following is quoted:
“Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole.”
We are receiving inquiries as to the responsibility of a customer where he had used part of a shipment of lumber of one description, the customer claiming the statute above quoted permitted him to use such of the shipment as was up to grade and reject the balance. Commenting on the law above referred to where a shipment contains lumber under one description it would seem to be the law that if the consignor delivers to the consignee the goods contracted for of the same description included in the contract, the debtor, with his right of inspection must either reject or accept, and if the consignee does any act by which it could be inferred that he is exercising the right of ownership of any part of the merchandise so shipped and delivered, we believe he is liable for the entire amount of lumber shipped and received. He cannot take out what he wants of the order and reject the balance.