I am of the opinion that the acceptance and use of the check for $62.25 constituted an accord and satisfaction. The question arises over the purchase of one ton of Borneo rubber by the defendant from the plaintiffs at the agreed price of forty-two cents per pound. After thé delivery of the rubber, the defendant claimed -that it was of a very poor quality and declined to pay for it until the amount of shrinkage could be ascertained. The defendant in the meantime remitted to the plaintiffs a check for $800 to apply on account. The total purchase ' price of the .rubber, if it had been of good quality and did not shrink in weight, would have been $1,093.67.. The plaintiffs insisted that the weight should be determined as of the time of delivery and. not at a later period after shrinkage had taken place. The defendant received the rubber on the 20th of January, 1904. On the sixth day of February thereafter, and after the plaintiffs had rejected the contention of the defendant that it was entitled.to a deduction on account of excess of shrinkage, the defendant inclosed a check for $62.25 to the plaintiffs with a letter stating that the rubber had been purchased under a guaranty that *428there would not be a shrinkage of more than forty per cent, which would make the purchase price, dry weight, seventy' cents per pound, and that the dry weight of the rubber was 1,230 pounds, which at seventy cents per pound, would amount to $861, to which $1.25 was added for cartage, and that the check was sent to cover thé balance due on the invoice which was for $1,093.67. It is manifest that the vendee did not even concede its liability to the vendors for the amount which it paid. It had asserted that the rubber was of poor quality and that it did not come -up to the guaranty with respect to shrinkage; but with a view to settlement, it offered to pay on the basis of the purchase' price, deducting for the excess of shrinkage. ' The claim was unliquidated, the amount of the defendant’s liability was in dispute and, therefore, when the plaintiffs accepted and used the check sent in full settlement, it constituted an accord and satisfaction. (Nassoiy v. Tomlinson, 148 N. Y. 326; Dunn v. Whalen, 120 App. Div. 729; Jackson v. Volkening, 81 id. 36; affd., 178 N. Y. 562.)
I, therefore, vote for affirmance of the judgment.
Judgment, and order reversed, new trial ordered, costs to appellant to abide event.