#### DAVIS v. KLING.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Payment—Mistake oe Pact.

Plaintiff agreed to sell milk to defendant for a year, beginning April 1, and defendant agreed to pay therefor at a certain rate if plaintiff should *1027furnish the sama quantity in November, December, and January as in May, June, and July, but otherwise at a lesser rate, payments to be made monthly. Defendant paid each month at the greater rate, but plaintiff did not furnish the quantity as provided in the contract, so that he was overpaid for the millt furnished. *Held,*that the monthly payments made by defendant did not constitute either an accord and satisfaction, or an account stated, or voluntary payments, but that so much thereof as were overpayments were made under mistake of fact.

Appeal from Sullivan county court.

Action by John F. Davis against Anna E. Kling to recover for milk delivered to defendant’s creamery during the months of February and March, 1892. There was a judgment in favor of plaintiff for $43.30 damages, besides costs. Defendant appealed to the county court, and demanded a new trial in that court. The county court directed a verdict in favor of plaintiff for $43.90, with interest, and defendant appeals. Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

J. I. Curtis (T. F. Bush, of counsel), for appellant.

John F. Anderson (Lewis E. Carr, of counsel), for respondent.

PUTNAM, J.

This action was brought to recover for milk sold and delivered during the months of February and March, 1892, under the provisions of a written contract between the parties, which took effect on April 1, 1891, and continued until April 1, 1892, and by which plaintiff during said period agreed to deliver milk to defendant. The latter was to pay on the 15th of each month for the milk delivered the prior month. In pursuance of the contract, plaintiff delivered milk from April 1,1891, to April 1,1892, and following the delivery of each month defendant made the payments required by the contract by checks. The check of May, 1891, is as follows:

“Jersey City, N. J., May 12, 1891.

“First National Bank.

“Pay to the order of A. Davis, twenty-five and 2-100 dollars.

“$25.02-100.

‘Paid in full, to May 1st, ’91. Anna B. Kling.”

Each month thereafter up to February, 1892, defendant paid for the milk delivered the previous month by a similar check. It is conceded that the milk delivered in February and March, 1892, has not been settled for. There is no dispute about the amount delivered, and its value at the contract price was $43.90, the sum for which the •county judge directed the jury to render a verdict in favor of plaintiff. The only question in the case arises out of the claim of defendant that in making the payments for the months of April, May, June, July, August, and September she overpaid plaintiff the sum of $27.45, which should be allowed on the demand for milk delivered in February and March, 1892, leaving due plaintiff the sum of $16.52, instead of $43.90. It was provided in the written contract that if plaintiff— and others who executed the same agreement with him—should deliver as much milk in November, December, and January of the year embraced in said contract, as they shall deliver in May, June, and July of said year, the defendant would pay for the months of *1028April, May, June, July, August, and September one-half of 1 per cent, per quart less than the price made by the New York Milk Exchange; but, if plaintiff shall fail to deliver as much milk in November, December, and January as in May, June, and July of said year, then defendant would pay for the milk delivered in April, May, June, July, August, and September three quarters of 1 per cent, per quart less than the price made by the New York Milk Exchange. As above suggested, the contract provided that on the 15th of each month during its continuance the milk delivered the prior month should be paid for. Whether, however, the plaintiff should be entitled the first six months to be paid at the rate of one-half of 1 per cent, or three-quarters of 1 per cent, less per quart than the price made by the New York Milk Exchange could not be determined until after the following months of November, December, and January, as until then it could not be known whether plaintiff would or would not furnish in those months as much milk as he had in May, June, and July. In making the payment for the first six months of the year defendant apparently assumed that plaintiff, in November, December, and January thereafter, would deliver the same quantity of milk he did in May, June, and July, and paid for the milk delivered one-half of 1 per cent, per quart less than the price made by the New York Milk Exchange. In fact, plaintiff in November, December, and January did not furnish the same quantity of milk as in May, June, and July, and hence plaintiff was only entitled to receive for milk delivered the first six months a sum three-quarters of 1 per cent, less per quart than the price made by the New York Milk Exchange. The defendant therefore overpaid for said first six months of the contract; such overpayment amounting to $27.45.

There was no dispute as to the facts,—the amount of milk delivered, the sums paid by defendant, and that she had for the months above specified made an overpayment that plaintiff was not entitled to under the contract. The court below directed a verdict for the plaintiff for the amount claimed, holding that the conceded overpayments made during the first six months of the contract by defendant could not be allowed her. We cannot concur in the view of the case taken by the county court. We can see no satisfactory reason why all sums paid by defendant under the contract for milk delivered by plaintiff should not be allowed. As above suggested, the milk was delivered and payments made under a continuing contract extending from April 1, 1891, to April 1, 1892. The price which plaintiff should receive for the first six months could not, for reasons above stated, be determined until the expiration of nine months from the time of its going into operation. This being so, defendant, being obligated to make monthly payments, made them at the maximum price mentioned in the agreement. When it was found at th.e end of nine months that she had for the first six months paid a larger sum than plaintiff was entitled to, we can see no reason whatever why the overpayment should not be allowed on subsequent payments becoming due. She made the overpayments, when it was uncertain what the amount of the monthly payments should be, at the maximum rate. When it turned out *1029that she paid more than was due for the first six months, it is but just that the excess should be applied on the subsequent payments becoming due on the contract. No sufficient reason is stated by counsel for the respondent why the overpayments should not be so applied. The monthly payments by defendant to plaintiff, above referred to, did not make a monthly accord and satisfaction, as suggested by the learned counsel for respondent. There was never any dispute or controversy between the parties. There is nothing in the transaction in question like an accord and satisfaction. Nor can the giving of the check each month be deemed an account stated as to the milk delivered the prior month. The monthly payments in question did not effect an account stated, because they were made at a time when it was impossible to determine the true amount that should be paid plaintiff. An account stated is where the parties settle, and are deemed to intend to settle and state their accounts. The parties here, under the plain provisions of the contract, could not, when the monthly checks were given, settle the amount due the plaintiff. They could not make an account stated. Nor does the evidence in the case show any. intent to make an account stated by any agreement or settlement between the parties. Nor can the overpayments made by defendant be deemed voluntary payments. What are called "voluntary payments” are when one knowingly pays and intends to pay an illegal or unfounded claim, with, full knowledge of its illegality or groundlessness; as, for instance, had plaintiff, at the termination of the contract, demanded of defendant as the sum due him $43.90,—being the amount for which he obtained judgment,—and had defendant paid him what he demanded voluntarily, with the knowledge of all the facts which she now knows, this would have been deemed a voluntary payment, and defendant could not have recovered the overpayment. See Trust Co. v. Manning, 3 Sandf. Ch. 58; Ritter v. Phillips, 53 N. Y. 586; Bennett v. Bates, 94 N. Y. 354; Cox v. Mayor, etc., 103 N. Y. 519, 9 N. E. 48; Redmond v. City of New York, 125 N. Y. 632, 26 N. E. 727. Many other cases to the same effect might be cited. These authorities show that a “voluntary payment” is one made with full knowledge of the facts, —a voluntary payment of an unfounded or illegal claim. It does not appear in this case that defendant intended to pay any sum in excess of the amount due on the contract. She made payments in advance of the time when she was bound to make them; larger monthly payments than, as it now appears, the contract called for. But when she made them the proper amount to pay was uncertain. The overpayments made by defendant in said months were not in pursuance of any demand of plaintiff. It does not appear that there was any settlement between the parties, or that plaintiff asserted any claim for the sums paid. All that the case discloses is that at the end of each of the first six months, the price per quart for the milk that plaintiff, would, in the end, be entitled to, under the contract, being uncertain, the defendant paid him the highest sum he could receive thereunder. She paid on the contract in advance, but it does not appear that she intended to pay, in the end, on the contract, a greater sum than plaintiff was legally entitled to. There*1030fore there was no “voluntary payment” of the overpayment in question, no intent being shown (and none will be presumed) on the part of defendant to pay plaintiff more than the contract price for the milk delivered. We think that the overpayments made by defendant during the six months in question might be deemed paid under a mistake of fact. The payments were apparently made and received on the assumption that plaintiff would furnish the same quantity of milk in November, December, and January as in May, June, and July. There was a mistaken assumption. We suppose that there may be a mistake as to a fact expected to happen as well as to one deemed already to have occurred. It is well settled that money paid under a mistake of fact may be recovered. Thompson v. Otis, 42 Barb. 461; Tinslar v. May, 8 Wend. 561; Bank of Commerce v. Union Bank, 3 N. Y. 230; Boyer v. Pack, 2 Denio, 107; Renard v. Fiedler, 3 Duer, 318. And this is the case although the party making the payment, if vigilant and careful, could have avoided the mistake. Bank v. Eltinge, 40 N. Y. 391; Waite v. Lygett, 8 Cow. 195. The judgment should be reversed, and a new trial granted, with costs to abide the event. All concur.