Kissell v. Myer & Bush Co.

96 N.J.L. 513 | N.J. | 1921

The opinion of the court was delivered by

Mint win, J.

The complaint alleged a hook account for goods sold and delivered, consisting- of poultry, for the sum of $5,451.2 t. TTpon this a credit was allowed to the amount of $3,975.81. The defence alleged was that the quantity of goods shipped was greater than that contracted for; that when the goods arrived at Newark, their destination, from Chicago, the place of shipment, the}- were in such bad condition that it became necessary to summarily sell them, which was done with the consent of the plaintiff's, and the amount realized from the same was turned over to the plaintiffs, less freight and commission charges, From this situation the defendant argued that it occupied no longer the status of purchaser, at a fixed price, hut by force of circumstances, as well as by the consent of the plaintiffs, expressed in writings and dispatches, it occupied the legal status of a commission broker or factor, responsible only to the plaintiffs for the amount realized upon the sale. The case went to trial upon that issue, was determined upon that legal theory, and the jury found for the plaintiffs for the balance due upon the purchase price as shown by the book account.

The effect of this defence essentially was to substitute a second contract for the original agreement; • and its further effect, if defendant’s theory of the creation of a substituted contract, by the acts and writings of the parties was to be credited, was to accept the defendant’s claim of payment as a plea in bar, by way of accord and satisfaction.

An accord and satisfaction, like all 1 ¿lateral contracts, is evidenced by the mutual meeting of the minds of the parties; and, as has been held in a number of well-considered cases, if the creditor is to be held to abate his claim or change his legal status against Ms debtor, it must he shown that he understood, or should have understood, that he was doing so when he received the consideration claimed for that purpose. Brooklyn Bank v. DeGrauw, 23 Wend. (N. Y.) 342; Fuller v. Kemp, 138 N. Y. 231; Pomeroy v. Prescott, 106 Me. 401; Baker v. Safe Deposit Co., 90 Md. 744; 1 R. C. L. 12, and cases cited; Rose v. American Paper Co., 83 N. J. L. 707; Decker v. Smith, 88 Id. 630; 1 C. J. 583, and cases cited; Lorentowicz v. Bowers, 91 N. J. L. 225.

Upon those issues the learned trial court properly sent the .case to the. jury, since hotli controversies presented essentially questions of fact.

The judgment is affirmed.

For affirmance — The Chancellor, .Chief Justice, Swayze, Trenchard, Parker,, Bergen, Minturn, Kalisoh,. Black, White, Heppeniteimer, Williams, Gardner, Ackerson, Van Buskiric, JJ. 15.

For reversal—None.