34 N.Y.S. 398 | N.Y. Sup. Ct. | 1895
Defendants requested the referee to find that the settlement agreement omitted a provision to the effect that they might retain commissions as agents under the agreement of January, 1877, “by inadvertence and the mutual mistake of the parties thereto.” There was, at most, a conflict in the evidence upon that subject, and there was not such a preponderance of evidence in favor of defendants as to warrant the conclusion that the refusal of the referee to so find was erroneous. Besides, where it appears, as by some of the evidence it does appear, that the contract is as one of the parties intended to make it, the court will not reform it Bartholomew v. Insurance Co., 34 Hun, 265; Paine v. Jones, 75 N. Y. 593. The proof in the case given to secure the reformation does not come up to the degree required by the rule laid down in Bartholomew v. Insurance Co., supra, and cases there cited. Upon the trial, evidence given to support the defendants’ averments that the agreement of May, 1883, did not express the true intent of the parties, was received, and admissible under that part of the answer which sought a reformation. Although some of the evidence was not admissible on the other issues, its admission is not such an error as requires an interference with the report of the referee. The principal issue in the case turned upon the construction to be given to the contract of settlement of May 23,1883. Plaintiff and defendants were parties to litigation, and sought to make an amicable adjustmént of the controversies, and, in the presence of experienced counsel on either side, the negotiations were brought to an end, and the instrument, prepared under the supervision of their counsel, was executed. Its terms and stipulations were matured after such discussion and deliberation. It was prepared to supersede and rescind
Plaintiff objected to the withholding of its money by the defendants, and by receiving part thereof did not forfeit its rights in the sum wrongfully withheld. Burnside v. Matthews, 54 N. Y. 80. Defendants held the moneys of the plaintiff, and by asserting that the lesser sum must be received by the plaintiff in full did not produce an accord and satisfaction. The case of Schuyler v. Ross (Sup.) 13 N. Y. Supp. 944, differs from this. There a sale had been made of bark, and the plaintiff by accepting the check admitted the measurement claimed to be correct. Hills v. Sommer, 53 Hun, 392, 6 N. Y. Supp. 469, was a case where a draft was sent for the amount alleged to be the balance for goods sold after deducting for the parts that were defective, and the defendants disputed the liability for any greater sum than the draft they sent, and plaintiff accepted the same as a compromise of the dispute. Here the plaintiff did not acquiesce in the claim of the defendants, but objected to the sufficiency of the advances, and expressly notified the defendants that the sums remitted would be credited on account. Stenton v. Jerome, 54 N. Y. 480; Ryan v. Ward, 48 N. Y. 204; Nassoiy v. Tomlinson (Sup.) 20 N. Y. Supp. 384. There was a deficiency. The defendants retained money which, by the instrument signed by them, had been assigned to and belonged to the plaintiff, and the part payment thereof to plaintiff did not discharge the defendants’ liability. Jaffray v. Davis, 48 Hun, 500, 1 N. Y. Supp. 814. The referee refused to find that defendants expended money for goods ordered, cartage, and telegrams in May, subsequent to the 19th of May, amounting to $914.92, and refused to find that defendants expended in June $408.11, and that such sums were credited on the books of plaintiff. We think such refusals were erroneous and that the evidence warranted the findings requested. Some of the evidence bearing upon the items is found in the testimony of Prosser, to the effect that he was requested to allow the goods ordered for the company to be delivered, and that all the goods and expenses mentioned in Exhibits Q and R were delivered and received by plaintiff subsequent to May 23, 18S3. Bingham’s evidence tends to the same result The plaintiff has been allowed improperly to recover for the items referred to in Exhibits Q and R, to wit, $914.92 and interest from June 1, 1883, and $46.58 and interest from July 1, 1883. The amount of the items should be deducted from the judgment.
The affidavits and papers used at special term were such that the court was called upon to exercise its discretion as to the propriety of granting an extra allowance. Burke v. Candee, 63 Barb. 552; Gooding v. Brown, 21 N. Y. Wkly. Dig. 47; Morse v. Hasbrouck, 13 N. Y. Wkly. Dig. 393; Tolman v. Railroad Co., 31 Hun, 403. It is
Judgment and order reversed, and a new trial ordered, with costs to abide the event, unless plaintiff shall stipulate to modify the report and judgment by deducting $914.92 and interest from June 1, 1883, and $46.58 and interest from July 1, 1883, in which event the judgment as so modified and the order are affirmed, without costs to either party of this appeal. All concur.