45 N.Y.S. 961 | N.Y. App. Div. | 1897
The plaintiffs and defendant entered into a contract respecting the construction and delivery of a number of boilers and the performance of other work. After the completion of the contract, a dispute arose respecting the sum which was due from the defendant to the plaintiffs, and thereupon it was determined to leave the matter to an arbitrator who was agreed upon.' The arbitrator made his report, finding that a certain sum was due from the defendant to the plaintiffs. The defendant thereupon wrote the plaintiffs this letter:
*354 ' “ Brooklyn, Sept. 2is.¿, 1893.
“ Messrs. Farrell, Logan & Go.:
.“.Gentlemen.-^- Inclosed, I hand you check for $1,859.02 dollars, in full settlement of account to date. Please acknowledge receipt of same and oblige, .Yours truly,
“ M. T. DAVIDSON.”
This, letter. contained a. statement of account as claimed by the . defendant, and the check was-made for the full amount of that account and of the sum found to. be .due by the arbitrator. The plaintiffs received the letter and the check, indorsed aud collected the latter, applied the'same upon the defendant’s account..and wrote the defendant this letter:
“ Mr, M. T. Davidson,
“ Brooklyn, - N. T<:
.“Dear Sir.— Yóurs of this morning, with Check enclosed fdr $1,859.02* received, and same has been placed to your credit on account.
“ Owing to the exeessive charge for . castings, etc., as well as the fact, that the award made by Mr. D. F. Quinn is entirely inadequate, and also to the fact- that you have charged us three, thousand ($3,000.00) dollars for the furnaces, which you agreed to furnish for twenty-five hundred ($2*500.00) dollars, we must decline-to accept the payment, as final, . ■-
“We also notice that no interest whatever has been allowed for. the- borrowed money or on the merchandise, account, the bulk of which has"been standing nearly• three years.. Kindly make an appointment with a view of 'adjusting above difficulties. .
“ Yours respectfully,
' “ FARRELL, LOGAN & SON.”
To this letter, the defendant made no reply, and they again wrote the defendant, as follows:
“Mr. M. T. Davidson,
“ Brooklyn, N. Y.:
“Dear Sir —On Sept. 22nd'we wrote you.relative to balance of account and have received no reply to same."
*355 “Kindly let us know what yon propose doing in the matter on or before Friday of this week or we shall be compelled to put the matter in the hands of our attorneys.
“Tours respectfully,
. “FARRELL, LOGAN & SON.”
In answer to this letter the defendant sent the following reply;
“ Messrs. Logan Iron Works,
“ Greenpoint, L. I.:
“ Gentlemen.— I have yours' of the ilth referring to yours of the 22d ult., which was also received. 1 have only to say, reference to yours of 22d, that when I make an agreement I stand by it, and I propose you will stand by the award made by Mr. Quinn. As to the price charged for castings, when you make the statement . that it is excessive you simply know better. As for my ever agreeing to furnish the furnaces for $2,500, you also know better than that. Now I have only one thing to say, that when you start in make sure what you propose to do. I also have a bill which, in equity, you ought to pay, amounting to. a number of hundreds of dollars, and which I will produce at proper time. You can place the matter in the hands of your attorneys just as quick as you like.
“ Respectfully yours,
“M. T. DAVIDSON.”
There is no oral testimony in the case which modifies or changes in any degree the force and effect of these letters, nor is there, any dispute of fact in connection therewith. They remain tó be considered and construed by what appears upon their face in connection with the undisputed fact that the defendant did not answer the first letter. This condition created a question of law for the court, and upon this subject there was no question óf fact for submission to the jury. (Dwight v. Germania Life Ins. Co., 103 N. Y. 342; Edall v. The New England R. R. Co., 18 App. Div. 216.) The defendant insists that these letters and the transaction constituted . a completed accord and satisfaction, and that he became entitled to the direction of a verdict thereon in his favor. In Fuller v. Kemp
. The law permits of but two alternatives, either to reject or accept in-accordance with the condition. The plaintiffs were not permitted to-accept and disregard the condition, or to accept and imposé a condition which destroyed the one upon which payment was tendered. To permit this would be to nullify the terms upon which the payment was made. It is claimed, however, that the plaintiffs’ contention has the support of the authority we have cited. In that case
We are now to see if the defendant’s reply to the second letter changed in any wise this condition. There is nothing-in this letter which in words shows any disposition to recede from the former position, that the payment was in full; and the mere fact of sending it did not work such a result. Its statement is : “ When I make an agreement I stand by it, and I propose you will stand by the award made by Hr. Quinn.” The award made determined the amount which was due to the plaintiffs under their arrangement to submit the matter to arbitration. It was this amount that defendant included in his payment and which he insisted was the entire amount due and which he paid. When he referred to the award it must be understood as a reference to the amount 'determined thereby, and when he insisted upon that sum standing it was .equally an insistence upon whatever steps he had taken thereunder, which included the payment made. In any event," there is nothing in the letter or any
The judgment should, therefore, be reversed and a new trial granted, with costs to abide the event.
All concurred.
Judgment and order reversed and new trial granted, costs to abide the event. ' , . - •