#### Philip Gaffney, plaintiff and respondent, *vs.*George M. Chapman, defendant and appellant.

1. Although a mere agreement, by a creditor, to accept a less sum of money, in satisfaction of a larger amount claimed, is not a bar to the recovery of the remainder, yet, where a debtor agreed to deliver, and the creditor to receive, a certain quantity of goods, of a certain value, ($400,) as payment of his claim, and did receive them, it was *held*to be a satisfaction of the claim.

2. *Seld,*also, that a charge to the jury that, if they believed the defendant was indebted to the plaintiff in a larger sum than $400 the offer of the plaintiff to accept that sum from him, in full of all demands, would not constitute a valid agreement, nor be any bar to an action for the residue, was erroneous, as it prevented the jury from finding that the amount of goods received by *276the plaintiff was so received by him upon a compromise, and in settlement of a disputed claim, which question ought to have been submitted to them.

3. Where a motion has been made, at a special term, for a new trial on a *case,*the court, on appeal, can look into the whole case, for the purpose of correcting’any errors.

(Before Robertson, Oh. J., and Monell and McCunn, JJ.)

Heard October 18,1866;

decided December 31, 1866.

Appeal from a judgment, and from* an order detiying a motion for a new trial.

This action was brought to recover commissions on the sale or exchange of a stock of hardware. The plaintiff alleged an agreement by the defendant to pay him five per cent. The defendant denied the services, and alleged that he had paid the plaintiff $400, in full of all claims.

There was a dispute, on the trial, as to whether the $400 was intended or did apply to the services sued for, the plaintiff claiming it was a payment of commissions on a previous sale; and the defendant insisting it was in satisfaction of all claims for commissions. The evidence, on.. the trial, was conflicting ; but there was proof that the $400 were delivered in goods, not money. The court charged the jury that, if from the testimony, the jury believed the defendant was indebted to the plaintiff in a larger sum than $400, the offer of the plaintiff to accept that sum from the defendant, in full of all demands, would not constitute a valid agreement, nor be any bar to the action. The defendant excepted.

A motion was made, upon the judge's minutes, for a new trial, and denied. Judgment was, thereupon, entered on the verdict for the plaintiff.

*John E. BurHU,*for the appellant, defendant.

I. This being an appeal from the order denying a new trial, and the cause being heard upon the case as well as exceptions, the defendant is entitled to a reversal if upon the whole case it appears that there was any error on the part of the court, or that the verdict is contrary to law; these are features of the ground presented by the exceptions.

II. It is evident from the testimony that the original trade *277with DeGrroot fell through, and that a subsequent exchange was not effected by the procurement of the plaintiff.

III. The amount of the verdict was not warranted by the evidence.

Assuming that the plaintiff was enabled to recover on both transactions. The defendant’s books, introduced by the plaintiff, and the defendant's testimony, show that the first invoice of goods was $6000, and that the last invoice was $10,000; the plaintiff could only claim on the net value of the goods, deducting the trade discount of fifteen per cent.

Five per cent on these two sums,.......$800 00

Less hardware,............. 400 00

$400 00

Interest,............... 35 20

$435 20

IY. The agreement of the plaintiff to accept the $400 in goods in full of all demands, and the delivery of the goods was a valid defense as an accord and satisfaction. There was abundant evidence to go to the jury on the ground that the plaintiff’s claim, to say the least of it, was disputed, and that (as Chapman swore) the delivery of the $400 of goods was offered as a compromise and in satisfaction. The plaintiff, having received the goods, is estopped from denying that he received them under the agreement, alleging that he purchased them with his own money.

The judge erred in declining to charge as requested. (Palm*erton*v. *Huxford,*4 *Denio,*166.)

IY. It is evident from the charge on the fact of the agreement to pay $400, that the judge misapprehended the law, and confounded two principles entirely distinct.

Y. The main charge was not correct, and tended to mislead the jury and prejudice the defendant.

YI. The evidence offered to prove the ordinary rate of commissions was proper for the purpose of showing the improbability of the alleged agreement to give the plaintiff twice the *278ordinary rate of commissions ; and to confirm the truth of the defendant’s theory.

*Thos. Darlington,*for the respondent, plaintiff.

I. Upon disputed questions of fact, where conflicting testimony has been given, and where so much depends upon the bearing and manner of testifying of the witnesses, courts will not disturb the verdict of a jury, even though—as imperfectly represented upon a case made—they might have arrived at a different conclusion. The defendant’s statement, that Gaffney agreed to sign the receipt, in the face of the many distinct averments that Gaffney refused to sign it; his statement that Gaffney did not make the sale ; the production of the unsigned receipt for commissions on the second *sale;*are all statements proper for the scrutiny of a jury.

II. It is evident, from the testimony, that even if Gaffney originally agreed to accept the bill of hardware for all claims, yet, before the defendant parted with them, Gaffney had determined not to accept them in satisfaction, and had so expressly refused to accept them.

An accord executory, even with tender of performance, would be no bar.

III. It is apparent, from the testimony of Schroeder and of the porter, that the goods were delivered jointly, and were accepted by them, on account only of the first sale, which was a joint sale by them. Gaffney had refused to take them on account of the second sale, and when Gaffney *&*Shroeder called for and received them, they expressly refused to give a receipt for them on account of all demands, but gave a receipt showing that they were taken on account of the first sale, which was accepted by the porter. In any event, if the goods were delivered under a mistake, or even if any fraud or trespass could be alleged against Gaffney & Schroeder in this behalf, their joint acts cannot he set up in this case to affect the claim .of Gaffney alone -for a demand alleged to be due him individually. ‘ ;

IY. The defendant’s third point is founded on a clear mis*279apprehension of the facts. The goods on the first sale were exchanged at the price of $7000, though invoiced to the defendant at a little over $6000. Though that commission is not in controversy here, they were entitled to recover on the sale price. The second lot—invoiced, valued and bargained at $12,000—was, somehow, in the adjustment of valuation, reduced 15 per cent. This would leave $10,200, and 5 per cent on that amount would be $510 and interest. Should the court adopt this view, the judgment would not be reversed, provided the plaintiff would consent to a reduction.

Y. The charge of the judge was strictly correct. He left it to the jury to determine the facts between the conflicting statements, and to adjust the amount of the recovery according to the facts, as they should find them. It is evident that this is not the whole of the charge, and the defendant’s course to raise any question upon it was by requesting the court, to charge as he desired, and excepting to any different charge.

YI. The only instruction of the court to the jury to which any exception was taken, is strictly in accordance with the law. *(Keeler*v. Salisbury, 33 *N. Y. Rep.*648.)

. YI. The exception at folio 64 is clearly frivolous. While there is no reason to suppose that there can be any custom fixing rates of commission upon hardware without reference to the amount sold, place of. sale, and circumstances of each sale, yet the plaintiff in this case must succeed or fail upon the alleged agreement, and what commission others paid is wholly immaterial. There was no offer to show that the rate charged was any more than the ordinary rate, and without such offer the evidence proposed had no pertinence.

By the Court,

Monell, J.

I think that, if the jury had found a delivery of $400 worth of goods by the defendant, and their acceptance by the plaintiff, and that they were delivered and accepted in satisfaction, their verdict could be sustained. The defendant testified that such delivery was in full of all commissions to January 4,1865; against him, (defendant,) French and Conversethat the plaintiff agreed to accept it, on the *2806 th of J anuary, in full satisfaction; and that he took the hardware on the 9th of January. He stated that the transaction, which originated this suit," was included, and it was principally on account of such transaction that he made the compromise, to prevent difficulty. He further testified that he refused to pay five per cent commission, and told the plaintiff if he claimed such commission, he, (the plaintiff,) would abandon the sale. Mr. Pierson testified that he was in the defendant’s office when the plaintiff came in ; that there had been a former sale, and there appeared to be some misunderstanding between them. He stated that the plaintiff called him up and said: *“*Mr. Gaffney and I have come to an agreement. I am to give him $400 worth of goods in settlement of the whole concern.” The defendant assented to it, and subsequently took the goods. The plaintiff, who was examined on his own behalf, did not contradict the statement of the defendant, or of Pierson, and such statement was, in part, also corroborated by Smith, another of the defendant’s witnesses. The only evidence in opposition was the testimony of John W. Schroeder, who testified fhat he was a partner of the plaintiff in the first sale, and that the goods were got on that sale.

If, therefore, the evidence furnished by the defendant was to be credited, it established that the goods were received by the plaintiff in payment and satisfaction of his claim.

The instruction given by the learned justice to the jury, excluded, I think, from their consideration the evidence tending to establish the defense. He seems to have supposed that this was a case of the receipt of a less sum of money for a larger sum conceded to be due, and, therefore, no bar to the recovery of the remainder. Any sum less than the whole sum due, is not a satisfaction. But, in this case, the defendant agreed to deliver, and the plaintiff to receive, a certain quantity of goods, of the value of $400, as payment of his claim, and did receive them. It was, therefore, a payment and satisfaction of the claim.

The defendant’s counsel had gsked the court to charge the jury that, if the plaintiff agreed to accept from the defendant *281$400, in full of all demands against him, it was a valid agreement, and constituted a bar to the action. The justice refused so to charge. It does not distinctly appear whether the exception was to the refusal to charge, or to the charge itself. If to the request, I think it was not well taken. A mere agreement to accept a less sum in satisfaction, is not a bar, unless such less sum has been received and accepted. The charge, however, left the jury no alternative. The evidence authorized their finding that the defendant was indebted in a sum greater than $400, and they were told, if they so found, the acceptance of such sum was no bar. . In short, the jury were prevented from finding that the $400 worth of goods, received by the plaintiff, were so received by him upon a compromise, and in- settlement of a disputed claim.

That question ought, I think, to have been left to the jury, and not taken from them. The difficulty, as regards the exception, is obviated by the appeal from the order made at special term, denying a motion for a new trial. Such motion was made on a case,'and we can now look into the whole case for the purpose of correcting any errors.

I am of opinion that justice requires that the order denying the motion for a new trial should be reversed, and a new trial granted, with costs to abide the event. The judgment to be vacated only upon payment of the costs of the appeal from it.

McCunn, J., concurred.

Robertsoh, Oh. J.

I am not prepared to hold that the acceptance of a less sum of money in satisfaction of a larger debt, will operate as such, even although accompanied by a dispute as to the amount due, unless as a liquidation of an open and unsettled account, whose items are disputed, or an agreement to fix the indeterminate vqlue of services rendered or materials furnished. I fully concur in the rest of the views taken by my brethren.