#### Edward C. Amer et al., Appellants, *v.*John H. Folk et al., Respondents.

(City Court of New York, General Term,

May, 1899.)

Accord and satisfaction — Use of check for a smaller amount than the debt. ' ...

Where there has been a dispute in regard to.the value of goods sold and delivered and the vendees thereafter.send to the vendors a • check for an amount which they claim to be the full value of the goods, *635the use of the check by the vendors, with knowledge of the vendees’ contention, cancels the debt, as thé vendors should have returned the check if they deemed its amount insufficient.

Exceptions upon an appeal from a judgment dismissing a complaint.

Blumensteil & Hirsch (Morris J. Hirsch, of counsel), for appellants.

Hastings & Gleason (George S. Hastings, of counsel), for respondents.

Fitzsimons, Ch. J.

Qn October 21, 1896, defendants purchased from plaintiffs certain skins valued at $4,263.94. These goods were delivered to defendants prior to October 28th. On the last mentioned date defendants wrote to plaintiffs as follows:

> " *October*28, 1896.

> “ Messrs William Amer & Co.:

> “ Gentlemen.'— We had to go over the entire stock again to find the ten dozen which were short and we found you were right, but on examination of the entire lot of stock we find a vast difference. The writer examined every bundle himself and found eighty-two bundles which-were not, so we returned you this day-via Hew Line those Bdles as enclosed memo., which are not, kindly credit same to our account, and oblige,

> “Folk & Feitz.”

The memorandum indorsed, itemized-the goods returned and fixed their value at $1,038.41. On October 29th the plaintiffs' wrote defendants as follows:

> “ Messrs. Folk & Feitz, 47 *Warren*street, *New*York, *N. Y.:*

> “ Gentlemen.— Tour letter received, with regard to stock sold. In the first place, it' was- a straight salé, you looked through all' the goods, and bought them with a remark, “ I will take the lot and chance it.” The stock sent was the same you looked at, and the lot you refused we still have on hand. - How as this was a straight sale we refuse-to receive the goods. Tour next-door neighbor wanted the goods and claimed them, even threatening us with a lawsuit.

> Tours truly,

> “Wm. Ameb & Co."

*636On November 13th,' the defendants again wrote plaintiffs as follows:

> “ Messrs. William Amur & Oo.:

> “ Enclosed find check for $3,080.38 in settlement of bill of October 21, less merchandise retd, and discount.

> “ Please acknowledge receipt and oblige,

> “ Folk & Fritz,”

A check for $3,080.38, dated November 13th, payable to the order of plaintiffs, was ineloséd. This check was immediately cashed by plaintiffs upon its receipt.

These facts clearly establish that on November- 14th, when plaintiffs cashed the check just referred to, they were aware of the fact that the defendants contended that said check was- regarded, by them as fully paying the debt due for the goods delivered, and that they (defendants) would recognize no further indebtedness as due on said account; the plaintiffs so understood the situation. If it was not agreeable to them, it was their duty to return the check and refuse to accept the settlement so offered; but having accepted the cheek, it follows, as a matter of law, that the claim in question is cancelled and fully paid. The use of the check was, *ipso*facto, an acceptance of the condition. The trial justice was right in dismissing the complaint; there were no facts to submit'to the jury. See 53 Hun, 392; 138 N. Y. 231; 148 id. 326.

The exceptions must be overruled and judgment ordered for defendants, with costs and disbursements in the court below and in this court.

Schttchmaii and O’Dwyee, JJ., concur.

Exceptions overruled and judgment ordered for defendants, with costs and disbursements in court below and in this court