80 N.Y.S. 1102 | N.Y. App. Div. | 1903
We think the defendant made out & prima facie case of accord and satisfaction, and, upon the undisputed facts in the record,, in the absence of evidence that his claim to a rebate was made in bad faith, a verdict should have been directed for him instead of for the plaintiff. The rule of law is well established, undoubtedly, that where a liquidated sum is due, the payment of part only, although accepted in satisfaction, is not, for want of consideration, a discharge of the entire indebtedness, but this’ rule is not looked upon with favor and is confined strictly to cases falling within it. (Ryan v. Ward, 48 N. Y. 204, 208; Jaffray v. Davis, 124 id. 164; Kellogg v. Richards, 14 Wend. 116; Chicago, Milwaukee, etc., Ry. Co. v. Clark, 178 U. S. 353.) In Kellogg v. Richards (supra), where the acceptance of a promissory note of a third party in payment of a larger liquidated claim was held to be a complete discharge, Nelson, J., said : “ It is true there does not seem to be much, if any, ground for distinction between such a case and one where a less sum of money is paid and agreed to be accepted in full, which would not be a good plea. * * * The rule that the payment of a less sum of money, though agreed by the plaintiff to be received in full satisfaction of a debt exceeding that amount, shall not be so considered in contemplation of law, is technical and not very well sup
The compromise of a. doubtful claim, however, is a good consideration for the payment of money, and, in the absence of fraud or mistake, the settlement cannot be subsequently questioned on the ground that the claim could not have been enforced. (Stewart v. Ahrenfeldt, 4 Den. 189; Andrews v. Brewster, 124 N. Y. 433, 439.) In the Jaffray Case (supra) the rule was stated and approved that “ if there be any benefit, or even any legal possibility of benefit, to the creditor thrown in, that additional weight will turn the scale and render the consideration sufficient to support the agreement. * * * All that is necessary to produce satisfaction of the former agreement is a sufficient consideration to support the substituted agreement. The doctrine is fully sustained in the opinion of Judge Andrews in Allison v. Abendroth (108 N. Y. 470), from which I quote: ‘ But it is held that where there is an independent consideration, or the . creditor receives any" benefit or is put in a better position, or one from which there may be legal possibility of benefit to which he was not entitled except for the agreement, then the agreement is not mudum pactum, and the doctrine- of the common law, to. which we have adverted, has no application.’ Upon this distinction the cases rest, which hold that the acceptance by-the creditor in discharge of the debt of a different thing from that contracted to be paid, although of much less pecuniary value or amount, is a good satisfaction, as, for example, a negotiable' instrument binding the debtor and a third person for a smaller sum.” In the case at bar it is- unnecessary, to. determine whether the defendant’s claim for a rebate was valid and enforcible. The court will not inquire into the merits; it is sufficient if there was any plausible ground for a bona fide claim, and it was made in good' faith, and it is immaterial whether the dispute arose over a question of fact or of law. (General Electric Co. v. Nassau Electric Co., 36 App. Div. 510; affd., 161 N. Y. 656; Hills v. Sommer, 53 Hun, 392; Kine v. Farrell, 71 App. Div. 219; Andrews v. Brewster, supra; Goodrich v. Sanderson, 35 App. Div. 546, 551; Vorhis v. Elias, 54 id. 412; Whitaker v. Eilenberg, 70 id. 489; Zoebisch v. Von Minden, 120 N. Y. 406; Fire Insurance Assn. v. Wickham, 141 U. S. 564.) The defendant clearly released his claim to the rebate
The case is this: The plaintiff had a claim against the defendant for a balance of account The defendant, in good faith, asserted something more than a colorable claim as an offset thereto. Thus the defendant’s liability became unliquidated, and he tendered the plaintiff a check in full settlement and imposed as a condition that its acceptance and use should constitute full satisfaction of the plaintiff’s demand against him. This, I think, constitutes an accord and satisfaction within all the authorities. Moreover, it is by no means clear that the plaintiff’s claim, standing alone, was liquidated. The contract furnished the basis of liability, but the amount depended upon the measurement of the marble and the lighterage to be agreed upon,. '
It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.