| NY | Jan 28, 1896
On the sixth of April, 1887, the plaintiff sold the property of the defendants, under an agreement that he *328 was to receive compensation for his services in making the sale, but there was a difference between them as to the amount. The sale was not completed until about June 20th, 1887, on which day Mr. Chauncey, who represented the defendants in all their dealings with the plaintiff, wrote to him as follows: "I heard to-day from Mr. Griffith that the sale to Weston was completed on Saturday. I send you a check for three hundred dollars (1 per cent on $30,000), your commission on the sale. Please sign and return the inclosed voucher." There was a check for three hundred dollars inclosed, payable to the order of the plaintiff, and also an unsigned receipt in these words: "Suspension Bridge, New York, June, 1887. Received of the Tomlinson Estate three hundred dollars, in full for commissions for sale to J.A. Weston of 66 acre lot. $300." Under date of June 23d 1887, the plaintiff wrote to Mr. Chauncey, saying: "I don't know what you mean by sending me a check for $300. I want my five per cent commission on the $30,000." No reply was made to this letter, although one was requested, and during the latter part of July or the first of August, following, the plaintiff, who had in the meantime retained both check and voucher, called on Mr. Chauncey in the city of New York, and, as he testified on the trial, asked him what he meant by sending a check for "$300 commission for selling the farm. I said that I wanted my five per cent commission, as the understanding was between us. He said he wouldn't give one cent more, and I left him. * * * I knew there was a dispute between us, I claiming $1,500 and he claiming that I was only entitled to three hundred dollars, and that his check paid that, and with the knowledge of that condition of affairs I kept the check from July, 1887, to January, 1888, and then indorsed it and drew the money, and sent him a receipt on account." The plaintiff never returned the blank voucher sent to him with the check, but in January, 1888, he indorsed the check and drew the money on it, and then, under date of January 19th, 1888, wrote to Mr. Chauncey stating that he inclosed a receipt for $300, as part payment *329 for his services, and that he still claimed he was entitled to five per cent commission and insisted on being paid at that rate. The receipt inclosed was for $300, "in part payment for commission." On the 24th of January, 1888, Mr. Chauncey wrote to the plaintiff acknowledging receipt of the letter and voucher, and stating that he should "consider this payment in full for all commissions." The plaintiff did not return or offer to return the money so paid him. When the plaintiff rested, as well as at the close of the evidence, the defendants asked the court to direct a verdict in their favor on the ground that, upon the foregoing facts, which were not disputed, the plaintiff was not entitled to recover, but the motions were denied and the defendants excepted.
Two questions of fact were submitted to the jury: 1. Whether there was an agreement to pay plaintiff at the rate of five per cent. 2. Whether the plaintiff agreed to accept the three hundred dollars "in place of his claim for five per cent commission." The jury were instructed to find for the plaintiff if they thought that the agreement to pay at that rate was made, and that the agreement to accept was not made, otherwise for the defendants. They rendered a verdict in favor of the plaintiff for $1,200. The judgment entered on the verdict was affirmed by the General Term upon its opinion written on a former appeal, but then the record did not contain the proposed receipt in full. (Nassoiy v.Tomlinson, 65 Hun, 491" court="N.Y. Sup. Ct." date_filed="1892-10-21" href="https://app.midpage.ai/document/nassoiy-v-tomlinson-5503441?utm_source=webapp" opinion_id="5503441">65 Hun, 491-493.)
The question presented by this appeal is whether the undisputed evidence so conclusively established an accord and satisfaction as to leave no question of fact for the jury upon that subject. An accord and satisfaction requires a new agreement and the performance thereof. (Jaffray v. Davis,
The plaintiff cannot be permitted to assert that he did not understand that a sum of money, offered "in full," was not, when accepted, a payment in full. As was said in Hills v. Sommer
(53 Hun, 392" court="N.Y. Sup. Ct." date_filed="1889-07-09" href="https://app.midpage.ai/document/hills-v-sommer-5497022?utm_source=webapp" opinion_id="5497022">53 Hun, 392, 394), he was "bound either to reject" the check "or, by accepting it, to accede to the defendant's terms." The money tendered belonged to them, and they had the right to say on what condition it should be received. "Always the manner of the tender and of the payment shall be directed by him that maketh the tender or payment and not by him that accepteth it." (Pinnel's Case, 5 Co. 117.) The plaintiff could only accept the money as it was offered, which was in satisfaction of his demand. He could not accept the benefit and reject the condition, for if he accepted at all it was cum onere. When he indorsed and collected the check, referred to in the letter asking him to sign the inclosed receipt in full, it was the same, in legal effect, as if he had signed and returned the receipt, because acceptance of the check was a conclusive election to be bound by the condition upon which the check was offered. The use of the check was ipso facto an acceptance of the condition. The minds of the parties then met so as to constitute an accord, and, as was said by this court *332
in Fuller v. Kemp (
The principle that controlled that case must also control this, and the judgment appealed from should, therefore, be reversed and a new trial granted, with costs to abide the event.
All concur, except HAIGHT, J., not sitting.
Judgment reversed.