Lestienne v. Ernst

O’Brien, J. :

The ground taken by the learned trial judge was, that the acceptance of the check by the plaintiffs was an accord and satisfaction of the debt in dispute, and the question upon this appeal is as to the correctness of such ruling.

According to the complaint, the demand was for $347.10; but, irrespective of the defendant’s claim for the $150, it was conceded upon the trial that this amount was subject to a reduction of $143.65, being the trade discount and the sum representing interest for anticipated payment. This becomes important upon the question as to whether the demand was liquidated or unliquidated. If the former, the mere tender of a check for a smaller amount than was called for by the terms of the invoice, in full satisfaction thereof; the refusal to accept the same by plaintiffs on such conditions; the depositing of the check in the Columbia Bank and its remaining there for two months, and its subsequent acceptance, as set forth in plaintiffs’ letter, would not furnish the essential elements of a valid agreement to relinquish the remainder of the claim. As said in Fuller v. Kemp (138 N. Y. 237): “ Where the demand is liquidated, and the liability of the debtor is not in good faith disputed, * * * the acceptance of a less sum than is the creditor’s due will not of itself discharge the debt, even if a receipt in full is given.” If, on the other hand, the amount was unliquidated, the sending of a check, coupled with a condition that it should be received in full payment, and its subsequent receipt by the plaintiffs, and their using it without an assent on the part of the defendants to any change in the conditions upon which it was given, would constitute an accord and satisfaction. “ Always the manner of the tender and of the payment shall be directed by him who made the tender or payment, and not by him who accepts it.” (Pinnel's Case, 5 Co. 117; quoted with approval in Nassoiy v. Tomlinson, 148 N. Y. 326, at p. 331.) As said in the latter case: “ An accord and satisfaction requires a new agreement and the performance thereof. * * It must be an executed contract founded upon a new consideration. * * * If the claim is liquidated, the mere acceptance of a part, with the promise to discharge the whole, is not enough, for there is no new consideration. * * * If the claim is unliquidated, the accejffance of a part and an agreement to cancel the entire debt furnished a new consideration, which is found in the compromise. A demand is not liquidated even if it appears that something is due, unless it appears how much is due, and when it is admitted that one of two specific sums is due, but there is a genuine dispute as to which is the proper amount, the demand is regarded as unliquidated, within the meaning of that term, as applied to the subject of accord and satisfaction.”

We cannot see any distinction between that case and the one at bar. There the defendant sent to plaintiff a check for $300 to pay him a commission on a sale, and inclosed a receipt which read, “in full for commissions,” which plaintiff was to sign and return. The latter immediately wrote, stating: “ I don’t know wliat you mean by sending me a check for $300,” but retaining the check and saying that his claim was $1,500. After hesitating for five months he used the check and sent the defendants a receipt on account, writing them that he claimed a balance, which the defendants repudiated by insisting that the check which they had sent was in full.

Here the defendants, upon receipt of the letter notifying them that the plaintiffs had taken the check and intended to receive it, subject to the adjustment of the amount in dispute, did not reply, and in this respect there is a difference between the facts in the two cases; but we do not see that this makes any difference in the principle, because that letter was sent on the very day that the check was taken from the Columbia Bank and used by the plaintiffs, and, as said in the opinion from which we have already quoted, in speaking of the effect of the letter there sent by the plaintiff after he had taken and used the check and claimed the balance : “ This declaration was ex post facto and could have no effect unless acquiesced in by the defendants, but they promptly disclaimed and insisted that their debt was paid. "We think that the undisputed evidence shows conclusively that the offer was made in settlement of the claim and that the plaintiff so understood it, when by using the check he accepted the offer.” So here the undisputed facts are that a check for an unliquidated amount was tendered as payment in full, and was so understood by the plaintiffs, and their subsequently taking the check which was deposited upon such a condition and using it was conclusive upon them, because they could not take a check upon which a condition was imposed and relieve themselves of such condition by writing at the very time that they had used the check a letter saying that they accepted it subject to the adjustment of the amount in dispute, and as they never obtained the consent of the defendants to such a modification of the condition under which the check was tendered and deposited, they must be held to have accepted and used it cv/m onere.

Certain exceptions were taken to rulings upon evidence, but none of them are very material as bearing upon the question of accord and satisfaction, and those that have such bearing wore not harmful, because upon what must be regarded as the conceded facts we think the judge below, following Nassoiy v. Tomlinson (supra), correctly disposed of the question of law.

The judgment, therefore, should be affirmed, with costs.

Van Brunt, P. J., Rumsey and Williams, JJ., concurred.