"A creditor who accepts money tendered by the debtor unconditionally does not by that act estop himself from maintaining an action to recover any further sum that may be due." In Kruger v. Geer, 26 Misc.Rep. 772, 56 N.Y.S. 1015, an attorney wrote to his client: "Enclosed you will find a statement of account, my receipted bill for professional services since our last settlement, and a check for $166.86, being the balance due you."
The element of assent to the alleged new agreement is entirely wanting and cannot be implied as a matter of law by the mere retention of the check. Eames Vacuum Brake Co. v. Prosser, 157 N.Y. 289; Kruger v. Geer, 26 Misc. 772; McKay v. Myers, 168 Mass. 312. "Ordinarily, the retention of a check inclosed in a letter which refers to the amount as the balance due on accounts between the parties, will not be held to be an accord and satisfaction so as to bar an action for the balance due. It is only in cases where a dispute has arisen between the parties as to the amount due and a check is tendered on one side in full satisfaction of the matter in controversy that the other party will be deemed to have acquiesced in the amount offered by an acceptance and a return of the check.