80 N.J.L. 295 | N.J. | 1910
Tlie opinion of the court was delivered
This action was tried upon a stipulation as to facts, and resulted in the direction of a verdict for the defendant. The following are the material facts agreed upon: Both parties are dealers in oriental rugs, tlie plaintiff being a wholesaler in New York, and the defendant a retailer in Baltimore and Atlantic City. The plaintiff, in December, 1906, and in January, 1907, shipped certain valuable rugs, on memorandum, to the defendant at Baltimore by the Adams Express Company. By the terms of the memorandum the title to the rugs was to remain in the plaintiff, and the defendant was to be responsible for them while they were in his possession, and was to keep them insured against fire. Some of these rugs were sold by the defendant and accounted for by him to the plaintiff. In the
Upon the facts stated we are of opinion that the defendant was answerable to the plaintiff for the loss of the rugs. The carrier by whom he undertook to return the rugs to the plaintiff was not selected by agreement between the parties, but by the defendant. The fact that the original shipment by the plaintiff was through the Adams Express Company is immaterial, for it did not impose upon the defendant the duty of returning the goods by the same agency, or at all limit him in the selection of the carrier through whom the return shipment should be made. The delivery of the rugs by him to the carrier, under which he, without any authority from the plaintiff, accepted a limited liability on the part of the carrier in case of loss, did not constitute a delivery to the plaintiff. In employing the Adams Express Company as
It is suggested, but not argued, in the brief for the defendant in error that the receipt by the plaintiff of the check for $162 with the words “In full settlement to date” written upon its face was a satisfaction of all claims which the plaintiff then had against the defendant.
It is generally considered that where a claim is unliquidated, or in dispute, payment and acceptance of a less sum than that claimed, in satisfaction, operates as an accord and satisfaction (1 Cyc. 329, and cases cited); and, presumably" it was this principle that counsel had in mind in making his suggestion. But it is also considered that the receiving of a part of a debt which is due, under an agreement that the same shall be in full satisfaction, is no bar to an action to recover the residue. Idem. Looking at the agreed state of facts we find nothing therein from which it appears that at the time when the check was given there was any denial of liability" on the part of the defendant; and apparently the amount of the plaintiff’s claim has never been in dispute. Assuming, then, that the check was given and accepted on account of the present claim, it would seem that it constitutes no bar to the plaintiff’s action, but merely entitles the defendant to a credit for the amount paid. "Without determining that question, however, we think that the direction of a verdict cannot be justified upon the ground suggested by counsel, and for the following reason: The lost rugs were only a part of the shipments made by the plaintiff to the defendant, and did not constitute all of the transactions between them. Eor anything that appears to the contrary the cheek may have
The judgment under review must be reversed.
For affirmance—None.
• For reversal—The Chancellor, Chiee Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogeet, Yredenburgh, Dill, Congdon, JJ. 13.