I concur in the opinion of Mr. Justice Laughlin, except in so far as he holds that the transaction as stated by him constituted an accord and satisfaction as to the 1,288 kilos referred to in the state- . ment of the account on which the balance of 8,000 marks was struck, ■ and for which a remittance was subsequently made. I do not think there was any evidence to justify an accord and satisfaction, or that .any consideration existed to sustain such an accord and satisfaction.
. I also differ from him with respect to the right of the plaintiff to recover for the 2,000 kilos ordered by the cablegram. I think the plaintiff was entitled to recover the full fifteen marks per kilo for all the merchandise delivered. The defendants adopted this method of giving their order. The price fixed by the contract between the *109parties was fifteen marks per kilo, and the cablegram as delivered to the plaintiff’s assignor contained no limitation as to price.
The views I entertain, however, require a reversal of the judgment, and I, therefore, concur.
Exceptions sustained and motion for new trial granted, with costs to plaintiff to abide event. Settle order on notice.