#### Schuyler O. Strock, Respondent, *v.*The Brigantine Transportation Co., Appellant.

(Supreme Court, Appellate Term,

April, 1898.)

Accord and satisfaction — 'Acquiescence, by silence of the 'debtor, in the creditor’s application, as in part payment, of money sent by the debtor as in full settlement.

After a dispute had arisen in regard to items of freight upon goods sold, the debtor mailed the creditor a check for a sum of money “ in settlement of the accompanying bills and statement, which kindly receipt and return promptly”. Five days later the "creditor answered the letter; denied that the payment was in full settlement of the bills, said he had credited the cheek as a part payment, asked an itemized statement (including verified freight bills paid by the debtor) of items deducted in order that he might check them over, returned the bills sent and demanded payment in full. The debtor never answered this letter.

Held, that the defense of lan accord and satisfaction* interposed to an action brought for a balance due upon the goods sold, could not be maintained.

That, as no mutually satisfactory final settlement had. ever been made between the parties, the creditor was entitled to infer from the debtor’s, failure to reply to his letter that it acquiesced in the action of the creditor in treating the check merely as a part payment.

Appeal by the defendant from a judgment of the District Court in the "Gity of New York, for the second judicial district;.rendered in favor of the plaintiff, by the acting justice, thereof, without a

_ , The nature of the action and the material facts are stated in the opinion.

*359Edward Russell, for appellant.

Henry R. Twombly, for respondent.

Giegerich, J.

This action was brought to recover a balance claimed by the plaintiff to be due for goods, wares and merchandise, consisting of wooden poles, ties and lumber. The answer denies any indebtedness, alleges payment, and sets up an accord and satisfaction, together with an agreement between the parties whereby the goods were to be delivered at the Belmont Station in the City of Philadelphia, State of Pennsylvania, and that the defendant was to be allowed on account of the purchase price all moneys paid for freight and charges thereto, and claiming that after such deduction nothing remains due to the plaintiff.

There was a sharp conflict of testimony upon the question whether, as claimed by the defendant, the timber should be delivered at the Belmont Station; or whether, as contended by the plaintiff, the former was bound to receive it at any station in Philadelphia. A finding either way would have been warranted, and, the justice having found for the plaintiff upon a conflict of evidence, we should not disturb his conclusion respecting this subject in the absence of the elements which are requisite to- a review of the facts. Lynes v. Hickey, 4 Misc. Rep. 522.

Another question presented by this appeal is whether an accord and satisfaction was so conclusively established by the evidence as to leave no question of fact for the trial justice upon the subject.

The evidence regarding this question was substantially as follows: Prior to the 28th day of July, 1891, Mr. Cook, the defendant’s president, stated to the plaintiff that he would not pay him any more than the sum of $493.28, to which the plaintiff replied that he would not accept that sum as full payment. The language used by Mr. Cook was: “ I will make out an order on my treasurer for the amount. You can accept that or dó as you-please.” Whereupon the plaintiff said that he would accept it only as par-, tial payment. On July 30, 1891, the treasurer of the defendant addressed a letter to the plaintiff in the following words: “I inclose herewith check for $49 3.28, in settlement of the accompanying bills and statement, which kindly receipt and return promptly.” The statement thus inclosed showed according to the claim of the defendant that the amount due was $493,28.

On the 4th day of August of the same year the plaintiff addressed a letter to the treasurer of the defendant in which he ac*360knowledge!, the receipt of his letter .with the inclosures, and then proceeds to say: “ You say it is in full settlement of the bills, which is incorrect. The amount is insufficient, and I have, therefore, placed it to your credit as part payment on account only pending full settlement. Kindly send me an itemized statement, together with receipted freight bills, etc., of the items deducted, in order that I may check them over. You have submitted absolutely nothing as 'authority for making deduction from my invoice. I return bills to you pending payment in full. I have stated my position in this matter in a letter to Mr.. George H. Cook, pres, of your company, under date of July 28th, and will mail you a copy if desired. I ask, therefore, that you make full settlement in accordance with the contents of that letter, as the whole account, is past due.” To this letter no response was ever made.

This constitutes the entire evidence in the case upon this subject, and as the defendant relies upon it in support of his plea of an accord and satisfaction, the only question presented for our consideration is whether in any aspect of the case the trial justicie was justified in holding as he did that this defense had not been made out. The law upon the subject has recently been á matter of much discussion, and the question is often a nice one, owing not so much to any uncertainty as to the fundamental principles, which are reasonably well established, as to the difficulty in applying them to the ever-varying facts which individual cases present. Fuller v. Kemp, 138 N. Y. 231; Nassoiy v. Tomlinson, 148 id. 326; Rothschild v. Mosbacher, 26 App. Div. 167.

In the case of Fuller v. Kemp, *supra,*the court says (p. 238): “ In Preston v. Grant, 34 Vt. 201, the Supreme Oourt of Vermont very sharply, and, as we think, correctly, defined the fine of discrimination which separates this class of cases from those where the defense fails. Judge Pierpont, delivering the opinion of the court, at p. 203, says: ‘To constitute an accord and satisfaction, it is necessary that the money should be offered in satisfaction of the claim, and the offer accompanied with such acts and declarations as amount to a condition that if the money is accepted it is accepted in satisfaction,, and such that the party to whom it is offered is bound to understand therefrom, that if he takes it, he takes it subject to such condition. When a tender or offer is thus m„ade, the party to whom it is made has; no alternative butj to refuse it, or accept it upon such condition. If he takes it, his claim is canceled, and no 'protest, declaration or denial ■ of his, so long *361as the condition, is insisted on, can vary the result. The principle is too well settled in this state to require ’either argument or the citation of authorities to support it.’ ”

If in the case at bar the defendant had answered plaintiff’s letter, stating that it still insisted upon the payment of the money in question in full satisfaction of plaintiff’s claim, and the'plaintiff had then persisted in retaining the money which had been sent him, there can be no doubt of the fact that there would then have been a complete accord and satisfaction, which would have barred any recovery in this action. The only question then for us to consider is whether, under the circumstances of the case, the defendant was not bound to advise the plaintiff that he could not accede to his proposition. There can be no doubt about his good faith in the matter. The record shows the existence of a *bona fide*dispute between these parties with respect to the amount of freight which under the contract between them was properly chargeable to the plaintiff. The freight in question had been paid by the defendant, and the plaintiff naturally went .to its officers for the purpose of an accounting and a liquidation of the amount to which he was entitled upon a statement of the transactions between them. The account that was presented to him upon which the defendant stood did not give the particulars of the items in such form that the plaintiff was able to determine their accuracy, although apparently he knew that he was entitled to a larger amount than the bills shown by the defendant. He was ignorant of the details upon which the defendant apparently relied in support of its account, and it was under these circumstances that he stated to Cook, the defendant’s president, that he would not accept the balance shown him in full of the account, but only as a partial payment. Although Cook did not accede to this proposition and his refusal was followed by the letter above quoted from the treasurer of defendant, it was quite reasonable for the plaintiff to infer from the failure of the defendant’s treasurer to answer his letter of August 4th that his appropriation of the money as a partial payment, and not as a settlement in full was acquiesced in. There had been no satisfactory accounting between the parties; the plaintiff was still asking for an itemized statement with proper vouchers to the end that a satisfactory and accurate adjustment of their transactions might be had; and when in connection with this he stated that he placed the amount which had been sent him to the credit- of the defendant “ as part payment on account only pending full settle-' *362ment/’ the defendant should have advised him in return that the question was no longer an open one; that they would go no further in the matter; and would insist upon his acceptance of the amount which had been sent to him in full settlement, or not at all. Had this been done, doubtless the plaintiff would have returned the amount; and if he had done so, the defendant, we think, would have been obliged to accept it, or failing to do. so, could not then have established an accord and satisfaction.' It was |a matter of fair deduction from the- evidence that the failure of the defendant to reply to his letter justified .a belief on the part of the plaintiff that his proposition was acceded to.

In the case of Fuller v. Kemp, *supra,*the court says (p. 238):. “To make out the defense, the proof must be clear and unequivocal, that an observance of the condition was insisted upon, and must not admit of the inference that the debtor intended that his creditor might keep the money tendered, in case he did not assent to! the condition upon which it was offered.”

We do. not think that the proofs in'this case respond hoi .the test thus given. It cannot be said that an,inference is not permissible that the defendant acquiesced in the disposition of the matter which was made by the plaintiff. In the case last quoted, where the creditor wrote to his debtor, stating that he declined to accept a check in full payment, but had appropriated it as a'-partial pay-, ment of his claim, the court intimates (p. 236) that had the debtor, remained silent, it might have been presumed that- he assented to the use which the creditor had made of the check.

In the case of Nassoiy v. Tomlinson, *supra,*where a similar letter was sent by the creditor, accepting as a payment on account a cheek which had been forwarded to him in full settlement of his claim, the debtor promptly replied, refusing his. assent, and insisting that his debt was paid. The court held that the declaration of the creditor was “ *eco post facto,*and could have no effect unless acquiesced in by the defendants,” and the reply of the latter is referred to in refutation of any possible claim that there was any such assent.

There may be cases where the creditor would not be justified in assuming an acquiescence from a failure to reply to such declarations. Wé think, however, that in the case at bar the letter of the plaintiff referred to called for an answer, and that it cannot be said, considering , all the circumstances of the case, that he was not entitled to assume that his proposition was acquiesced in because of' the defendant’s failure to reply.

*363We have also examined, with great care the other exceptions taken at the trial, and the points raised on this appeal, and fail .to discover the existence of any substantial error, which would require-a reversal of the judgment.

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

Beekman, P. J., and Gildebsleeve, J., concur.

Judgment affirmed, with costs.