40 Misc. 221 | N.Y. App. Term. | 1903
Judgment was rendered in the court below in favor of the plaintiff and against the defendant for $210 and ■costs. The defendant had purchased from plaintiff’s assignor, on December 6, 1901, a quantity of lumber, and was indebted therefor in the sum of $238.49.
The plaintiff’s assignor, the "Whiting Lumber Company, is a corporation organized and existing under the laws of the State of
The principal objection of the defendant to the validity of the judgment arises from an alleged counterclaim set up by the defendant, amounting to the exact sum of $210, which, the defendant asserts, the court should have allowed. It appears that Casselbury, the assignor’s agent who made the sale to the defendant, while in defendant’s office in the city of Rew York, promised the defendant that, if the sale of a quantity of oak flooring was made to Stevens & Son, by his principal, the defendant should have three dollars a thousand by way of commission. The sale was made to Stevens & Son, and the commission amounts to $210. The Whiting Lumber Company, had not previously sold lumber to Stevens & Son, and the latter were ignorant of the arrangement' between Casselbury and the defendant as to commissions, nor did the Whiting Lumber Company have any knowledge of the said agreement. It is the claim of the assignor of plaintiff that this alleged agreement was not brought to its attention until the beginning of this suit. On the other hand, the defendant asserts
Even accepting this view of the nonliability originally of the corporation on this agreement made by Casselbury, it is nevertheless claimed by defendant that plaintiff should not prevail for the reason that there was an accord and satisfaction. The precise amount claimed to be due to the Whiting Lumber Company, from defendant at the time the difference arose between it and defendant, was $239.49. On January 7, 1901, defendant informed Mr. Whiting, president of the corporation, in an interview, of his claim; Mr. Whiting refused to allow it. The defendant on March 25, 1902, sent to the Whiting Lumber Company his check for $28.49, the difference
In the case of Fuller v. Kemp, 138 N. Y. 231, it was held that “ Where a debtor offers a certain sum of money in full satisfaction of an unliquidated demand, and the creditor accepts and retains the money, his claim is cancelled, and no protest, declaration or denial on his part, so long as -the condition is insisted upon by the debtor, can vary the result.” In the case of Nassoiy v. Tomlinson, 148 N. Y. 326, we find the following: “A demand is not liquidated, even if it appears that something is due, unless it appears how much is due; and when it is admitted that one of two specific sums is due, but there is a genuine dispute as to which is the proper amount, the demand is regarded as unliquidated, within the meaning of that term as applied to the subject of accord and satisfaction. If, when the amount of an indebtedness is in dispute, the debtor sends the creditor a check for the sum conceded by the debtor to.be due, with an unsigned receipt ‘in full,’ and a letter requesting the signing and return of the voucher, the offer of payment is to be deemed made upon the
In the case at bar, there was a genuine dispute as to which one of the two sums was due, and the defendant sent his check for the amount which he claimed to be due, and stated that it was in full payment of the account. The creditor, to-wit, the plaintiff’s assignor, received the check, did not return the same to the defendant, nor reply to the accompanying letter and statement of defendant, but indorsed the check and got the money thereon, before the service of the summons in this action. This constitutes an accord and satisfaction, within the meaning of the case of Eames Vacuum Brake Co. v. Prosser, above quoted.
It must be held, therefore, that notwithstanding the original nonliability of the corporation on the agreement made by Casselbury, there was an.accord and satisfaction, and the plaintiff was not entitled to recover.
The judgment is reversed and a new trial granted, with costs to appellant to abide the event.
EkeeMvIae", P. J., and G-iegerich, J., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.