sections 8 and 9 of the prime contract. There is no satisfactory proof that the omission of the word 'cutting' from the Glickfeld-Krendel contract was intended by the parties to place the responsibility for that work upon Glickfeld.
As for the welding, I find as fact that Krendel requested Glickfeld to have the Newark Welding Company supply that service; that Glickfeld paid $ 20 to that Company; and that Krendel agreed to reimburse the use-plaintiff.
Regarding defendant Krendel's contention that there also has been an accord and satisfaction of Glickfeld's claim for money due for extra work, I find that unlike the facts relating to the change orders, Krendel never clearly indicated to Glickfeld an intent that any payments were to serve as a satisfaction of all of Glickfeld's claims for amounts owed for extra work; nor has it been proved that there was a dispute between the parties regarding the extra work; nor has Glickfeld deposited the March 17, 1951, check in the amount of $ 572 tendered by Krendel and received by Glickfeld. Thus, there are not present three of the essential elements upon which an accord and satisfaction may be based: A dispute as to an amount of money owed, a clear manifestation of intent by the debtor to the creditor that the payment is in satisfaction of the disputed amount and acceptance of the satisfaction by the creditor. I am unwilling, and no persuasive authority has been cited, to hold that the mere retention of a check tendered by Krendel as payment for 'all obligations * * * in connection with the * * * contract' evidences a clear assent that Glickfeld accepts the payment as satisfaction for his extra work.
Defendants counterclaimed in two counts. The first count charges a conversion by the use-plaintiff of some salvage material. At trial, the defendant Krendel amended the first count to substitute a claim that the use-plaintiff agreed to purchase the salvage material for $ 350 -- quite a change from theft to sale. Glickfeld denied making the purchase and claimed that he stored the salvage material for Krendel who agreed to pay him $ 10 a month. Defendants' counterclaim and the defense to it emphasize how difficult it is for parties in litigation to tell the truth, the whole truth, and nothing but the truth. This is particularly so since the parties are very antagonistic toward each other; in fact, I might say bitter because of their unpleasant business relations. I am not unmindful that the self-interest of parties in a lawsuit very often tends to color their testimony. This interest is often inborn and will affect their testimony, perhaps unconsciously and with varying degrees of intensity. Unfortunately, litigants often have the idea that a lawsuit is not an effort to establish the truth of a situation, but merely a contest between adversaries with divergent interests, and so their testimony must be 'tailored' to succeed. I am not unmindful that the passage of time plays many tricks with the memory of facts long since forgotten. The court often gets inaccurate and exaggerated statements, figments and creations of the imagination, absent any intention to perjure. I make these observations because this case involves two apparently reputable businessmen. Because of their contradictory testimony, fact finding in this case was made very difficult for the court, and an additional difficulty was presented because most of the work involved here was underground, so that an inspection of the site was not helpful in determining the truth. The plaintiff testified he still had the salvage material on his property and was desirous and anxious that it be removed by the defendant Krendel, and to prove his 'generosity' he is willing to waive the rent. I find that the defendant has not established a contract for the purchase of the salvage, nor the plaintiff for storage charges. I find for the plaintiff as to this count.
As a second count, the defendants counterclaimed that the plaintiff failed to complete necessary work set forth in sections 9-16 of the plans and specifications, as a result of which the defendant Krendel has been damaged in the sum of $ 200. I find that Krendel did not do any of that work and if he did it was Krendel's obligation to do it under section 3 of the specifications, and that the work was not included in the sub-contract with the plaintiff. I find that the defendants have not proved this count of the counterclaim, and accordingly I find for the plaintiff.
An order for judgment may be entered in favor of the use-plaintiff against both defendants in the sum of $ 1,453.86, with interest thereon from June 21, 1951, the date upon which the Navy Department accepted the work. There is included in this amount the check for $ 572 sent by Krendel to plaintiff which was never negotiated and is now 'stale,' and judgment in favor of the use-plaintiff and against defendant Krendel on his counterclaim, with costs.