The defendant pleaded, as a first defense, nonconformity of the brick with the contract, and as a second defense, payment; it did not specially plead accord and satisfaction. Our rule provides that this defense be specially pleaded. Rules under the Practice Act, § 200 (Practice Book, p. 290); Grand Lodge of Conn. v. Grand Lodge of Mass., 83 Conn. 241, 252, 70 A. 533; Fogil v. Boody, 76 Conn. 194, 196, 56 A. 526. However, it is obvious from the record that this issue was tried and decided, evidence pertaining to it received without objection, and the point is not even raised upon appeal. The plaintiff must, therefore, be held to have waived the procedural defect and we call attention to it only in the interest of proper practice.
" The rule is repeated in Fogil v. Boody, 1903, 76 Conn. 194, 56 A. 526, the court stating that a payment offered in full satisfaction "if received and retained by the creditor" operates as a discharge "even though he protests at the time that the amount paid is not all that is due, or that he does not accept it in full of his claim." In Hanley Co. v. American Cement Co., 1928, 108 Conn. 469, 143 A. 566, it was held that cashing of a check for an amount admittedly due discharged the amount in dispute since it was tendered with the statement that it "pays our account up to July 1."
This objection cannot be entertained, for the reason that the defendant did not lay a foundation for it in its pleadings. Accord and satisfaction must be pleaded. Rules Under the Practice Act (1908, p. 250), § 160; Fogil v. Boody, 76 Conn. 194, 196, 56 A. 526. The failure to thus plead, however, has deprived the defendant of no right, as the facts shown, which need not be recited, do not disclose that there was an accord and satisfaction. The defendant's beneficiary fund which is involved in the present controversy was a fluctuating and uninvested one, which was established for the payment of death claims as they accrued, and from it such claims were paid. It was maintained by payments made by the members of the Order within its jurisdiction, in response to calls therefor issued by the Grand Recorder, an officer of the Grand Lodge, to the subordinate lodges.
We note that the defendant never asserted the defense of accord and satisfaction, which must be specially pleaded. See Practice Book § 10–50; Fogil v. Boody, 76 Conn. 194, 196, 56 A. 526 (1903). To the extent that the defendant's arguments on appeal could be construed as raising this defense, it is not properly considered by us in resolving this appeal because the defense never properly was raised and litigated before the trial court.
Practice Book § 10-48. Moreover, a defendant should not deny or respond to a demand for relief. Fogil v. Boody, 76 Conn. 194, 195, 56 A. 526 (1903). Practice Book § 10-46 provides that: "The defendant in the answer shall specially deny such allegations of the complaint as the defendant who intends to controvert, admitting the truth of the other allegations, unless the defendant intends in good faith to controvert all the allegations, in which case he or she may deny them generally."
1. "Where a claim is unliquidated or in dispute, the payment of a sum less than the amount claimed, upon condition that it shall be taken in full payment of the claim, operates as an accord and satisfaction, if received and retained by the creditor, even though he protests at the time that the amount paid is not all that is due or that he does not accept it in full of his claim." Fogil v. Boody, 76 Conn. 194, 196, citing Potter v. Douglass, 44 Conn. 541. 2. "When an offer of a sum less than the amount claimed to be due is accompanied by acts or declarations which make the acceptance conditional upon an acceptance in full satisfaction of the debt and the offer is in such form as to clearly bring this home to the creditor, the latter must either refuse the offer or accept it upon that condition."