
    Otto T. Schuller, Plaintiff, v. Louis Robison and Seine Robison, Doing Business under the Firm Name of G. Robison & Son, Defendants.
    First Department,
    June 24, 1910.
    Party—-severance of action — right to costs — debtor and creditor—part payment — accord and satisfaction — negligence.
    Where a severable cause of action is dismissed-as to one defendant he may enter judgment.
    But where two defendants answer jointly only one judgment can be entered, and, if the complaint be dismissed as to one and there is a disagreement as to the other,- the former’s right to costs depends on whether or not plaintifE ultimately succeeds in the action, although, of course, the dismissal as to him stands.
    A debtor on paying part of a conceded indebtedness cannot impose a condition that the acceptance thereof shall discharge the liability in full, since there is no consideration on which an accord and satisfaction can rest.
    Evidence in an action to recover for goods sold and delivered, in which the principal defense was an accord and satisfaction, examined, and held, to present a question of fact for the jury as to the intention and understanding of the parties.
    Where a firm- in New York cabled to a corporation in Germany, with which it had a contract to purchase a certain amount of artificial silk during the year, that the .market was falling and asked for 200. kilos, at a reduction of two marks per kilo on the .price to be paid under the contract, arid it appears that the code word-in relation'to the reduction was changed in, transmission so as to be meaningless, but that the vendor, without making any effort to ascertain what the mistake.was, answered that it would make the. shipment, it cannot recover more than the reduced price offered in the.flrst cablegram.
    Ingraham:, P. J., dissented in part.
    Motion by the plaintiff, Otto T. Schuller, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division, in the first instance, after a trial at the New York Trial Term in November, 1909.
    
      Herbert R. Limburg [Morris J. Hirsch with him on the brief], for the plaintiff.
    
      Eugene Cohn, for the defendants.
   Laughlin, J.:

At the close of the plaintiff’s case, on motion of counsel for the defendants, the court dismissed the complaint as against the defendant Seine Robinson. The plaintiff does not seek to review that dismissal on this appeal, but he contends that if the judgment be reversed and a new trial be granted as against the other 'defendant, the judgment for costs in favor of the defendant Seine Robinson should also be reversed. It appears that the action is brought on a liability of the copartnership firm of Gr. Robinson & Son. It is alleged in the complaint that Gr. Robinson died and that the defendant Seine Robinson is, now a member of the firm. There is no allegation or proof that she was a member of the firm at the time the liability arose, or that she assumed the obligations of the firm, but it appears that she answered jointly with the other defendant, and, therefore, by the express provisions of section 3229 of the Code of Civil Procedure, if the plaintiff recovered in the action, she would not have been entitled to costs. If the dismissal of the complaint as against .her ipso facto constituted a severance of the action, or the true construction of said section 3229 be that it has reference to the.rights of the parties as they appear at the time judgment is originally éntered, then, doubtless, the judgment may be permitted to stand in her favor unaffected, by. subsequent proceedings. We have held that' where the cause of action is severable .and the parties might be severally liable, and the complaint is dismissed as to one defendant and there is a disagreement as to the others, the one in whose favor the complaint was dismissed may enter judgment on the theory that the act of the court constitutes a severance of the action. (Tanzer v. Breen, 131 App. Div. 654. See, also, Code Civ. Proc. §§ 456, 1204, 1205; Draper v. Interborough Rapid Transit Co., No. 2, 124 App. Div. 357.) Since, however, the parties answered jointly, and the general rule is that only one judgment may be entered in an action at law, it would seem that the right of the respondent Seine Bobinson to costs must ultimately depend on whether plaintiff succeeds in the action, but of course the dismissal as to her stands.

The action is on an assigned claim of the Kunstseide-Yerkaufskontor, a limited liability corporation of Cologne, Germany, on a liability of the copartnership firm of G. Bobinson & Son of Sew York city, and it is now an action against Louis Bobinson alone on said liability, and for brevity he will be referred to as the defendant, although, as has been .seen, there are two defendants. At the close of the evidence the learned justice directed a verdict in favor of the defendant and an exception was duly taken. On uncontroverted facts, in the main formally stipulated, questions arise with respect to whether the plaintiff is debarred from maintaining the action on' the ground that there was an accord and satisfaction between the parties, and if not, then with respect to the extent of the liability of the defendant,

Prior to the 28th day of June, 1906, a verbal contract was made between the plaintiff’s assignor and defendants at the city of Cologne by which the former agreed to sell and the latter agreed to purchase 5,000 kilos of artificial silk at the price of fifteen marks per kilo, “to be delivered in part shipments as requested by the purchaser prior to the end of the year 1906,” and it was further agreed that should' the plaintiff’s assignor “ reduce the price for artificial silk for America under similar conditions, such reduced price should be applied to the uncalled for balance of the order.” The sales agent of the plaintiff’s assignor also undertook to procure for said firm 1,500 kilos of meteor, which is artificial horsehair. There had been prior dealings between the parties! It is stated in the stipulated facts that on the 2Sth day of July, 1906 -—I presume the twenty-eighth day of June was intended — the plaintiff’s assignor inclosed to defendants by mail two sales memoranda with respect to the artificial silk and the meteor, in accordance with the ¡d a rol agreement. These memoranda of sales and the stationery used by the plaintiff’s assignor in its correspondence with said firm contained a.memorandum in German which iii English isas follows: “ Cable address, Kunstseide. Lieber’s Code. ABC Code, Fifth Edition.” All cablegrams between the parties were in the cipher of the ABC Code, Fifth Edition. On the 13th day of July, 1906, • the defendants cabled plaintiff’s assignor as follows: “Majorquin can use ponzia each tubize blue label piamater deepsome recondes.” This cablegram when given the meaning df the code words was as follows: “ The market appears to . have collapsed. Can use 10 cases, each tubize bluelabel. 13 marks. Immediate delivery. Reply immediately by A B O Code, 6th Edition.” The word piamater meant, according to said code, thirteen marks. On the day tlie cablegram .was sent defendants wrote plaintiff’s assignor that the market appeared to have collapsed and that, they could “ use 10 cases each tubize and bluelabel at M. 13. Immediate delivery. Reply immediately A. B. O.. Code, 6th Edition,” and expressed the hope that the offer-would be accepted inasmuch as the goods were being sold here for two dollars per pound and had been offered lower, and that the cutting of prices was done by some of plaintiff’s assignor’s old customers. This letter was not delivered in Cologne until the 24th day-of July, 1906. The cablegram was delivered to plaintiff’s assignor the next .day after it was sent, and in -it as delivered the word “ pramater” was used instead of “ piamater,” and that word was not in said code and was meaningless, but plaintiff’s assignor made no effort to ascertain what the mistake wás. . On the ninth day of July the defendants wrote plaintiff’s assignor inclosing a draft in.payment for certain bills not under this contract, and requested a shipment at once of “ 500 Kilo Tubize roll 150'Denier,” and which evidently was to be under this contract therein stated that the goods of the plaintiff’s assignor, both in artificial silk and meteor were “being sold by our competitors at and below cost, figuring, artificial silk at M. 15 and Metéor at M. 20 per kilo, which as you know, is what the goods cost us. We will write,more about this in our next letter.”’ It does not appear when this letter was delivered, but it is stipulated that the usual period of transmission by ordinary course of mail was from eight to twelve days. On the sixteenth day of July the defendant cabled to plaintiff’s assignor: “ Please wire reply to our telegram of last Friday. Cannot take orders unless yon accept,” and the message was delivered the next day. On the day this cablegram was received, plaintiff’s assignor cabled defendants as follows: “ 10 cases bluelable, 5 cases tubize to-day, 5 cases by steamer next week.” On the eighteenth day of July plaintiff’s assignor wrote defendants with respect to the cablegram and this shipment, but did not refer to the meaningless word in the cablegram. After receiving the cablegram of July seventeenth, and before the twenty-fifth of'the same month, the defendants relying thereon and expecting to receive, not only the twenty cases ordered by cable, but further consignments at thirteen marks instead of fifteen marks per kilo, contracted to sell 3,800 kilos of artificial silk. On July twenty-fifth the defendants cabled plaintiff’s assignor as follows: “ How and when were the goods shipped?. Telegraph name of steamer. Repeat last order. You may ship by first steamer. Failing that by following.” The next day plaintiff’s assignor cabled defendants, referring to the telegram containing the meaningless word, as follows: “ Cannot clearly understand eighth word in your telegram. If important, please repeat it. Lowest price is M. 15. Telegraph what we are to do.” The same day the defendants received another cablegram from plaintiff’s assignor as follows: “Waiting reply to our cablegram.” After the receipt of these cablegrams defendants cabled as follows: “ Our letter of July 13th explains everything. Yesterday’s order to be executed as speedily as possible. We can arrange everything with Schuller,” meaning plaintiff who represented plaintiff’s assignor in the Hnited States. The next day the defendants received an answer by cable as follows: “ Cannot execute orders because we cannot accept offer. Lowest possible price is fifteen. Must have definite'answer.” Thereupon defendants cabled asfollows: “Your telegram to hand. Ship new order by cheap steamer.” After receiving this cablegram plaintiff’s assignor immediately shipped fifteen cases of gbods and notified defendants that they had been shipped under the contract. On the thirtieth of July defendants cabled plaintiff’s assignor to ship twenty-five cases more, and on the , thirtieth of July wrote plaintiff’s assignor with respect to these orders, but made no complaint concerning the- refusal of plaintiff’s assignor to ship at the reduced price previously requested.

' The shipments and invoices by the plaintiff’s assignor to the defendant after the making of the contract were as follows: On the sixteenth day of July plaintiff’s assignor shipped 1,000 kilos of artificial silk to defendant, and transmitted an invoice showing that it was billed at 15 marks per kilo, and that the total charge therefor, less three per cent discount for cash within a month as provided in the contract, was 14,560.60 marks ;• on the nineteenth day of July 504 kilos invoiced in like manner at 7,343.80 marks; on the twenty-sixth 504 kilos invoiced at 7,343.80 marks; on August second, first shipment that day* 504 kilos invoiced at 7,343.80 marks, second shipment, 999.30 kilos invoiced at 15,034.74 marks, and on August seventeenth 1,507.50 kilos invoiced at 21,944.75 marks. We do not deem it important to determine under which particular orders these respective shipments were made, for while the plaintiff claims that in any event he is entitled to recover for 500 kilos ordered by letter on July ninth at the rate of 15 marks per kilo for the reason that that order was manifestly under the contract, the deduction claimed by the defendant is on account of 3,800 kilos which he claims to have sold in reliance upon the cablegram -of the plaintiff’s assignor, which, in view of his cablegrams to which it was an answer, he understood to be a consent to sell to him the artificial silk at 13 marks per kilo instead of 15. All of these invoices have been paid with the exception that the defendant in remitting has deducted 2 marks per kilo on 3,800 kilos and thirty per cent of this deduction for duty on the theory that • if they had been billed at 13 marks instead of át 15 marks the custom house officers would have accepted that valuation and the duty on the 2 marks per kilo would have been saved, and also a discount of three per cent, being the cash discount provided for in the contract. On the seventh day of September the defendant remitted to plaintiff’s assignor a draft for 10,000 marks on account. There was then owing by defendant to plaintitrs assignor, in addition to his liability for artificial silk, 15,725.05 marks for meteor shipped on the eighteenth day of June the same year. On October fifteenth the defendant made a like remittance of 10,000 marks on account. On November second the defendant inclosed to plaintiff’s assignor a draft for 7,244.95 marks, and inclosed with it a statement of account in which he charged himself with 15,725.05 marks for the meteor shipped on June eighteenth, and 14,560.60 marks being for the invoice of artificial silk July sixteenth, making a total of 30,285.65 marks, and he credited himself with 3,040.70 marks, therein stated to consist of 488.70 marks for an alleged overcharge of 1 mark per kilo on the meteor and discount thereon; 30 marks for an alleged extra charge on short shipment, 1,940 marks being 2 marks, per kilo on said invoice less the discount, and 582 marks being for the duty alleged to have been overpaid at the rate of thirty per cent on 1,940 marks óf the valuation. Said statement showed this amount, 3,040.70 marks, deducted from the 30,285.65 marks, leaving a balance of 27,244.95, from which was deducted the 20,000 marks previously paid on account, showing a balance of 7,244.95 marks, for which the draft was sent. On November fourteenth plaintiff’s assignor acknowledged this remittance and stated that it gave defendant credit for the draft, but that it disallowed the credits claimed by him and demanded payment of the balance owing; and it is stipulated that it inclosed therewith a copy of the account as stated by it, which, however, does not appear in the record. On the same day the defendant remitted to plaintiff’s assignor a draft for 6,085.70 marks, and inclosed a statement showing that it was for the invoice of July nineteenth, related to nothing else and was for the amount thereof less an alleged overcharge on account of the 2 marks per kilo and the discount and duties thereon. On the twenty-fourth of the same month plaintiff’s assignor acknowledged the remittance and stated that the same had been credited to the defendant, but that defendant was still held for the unwarranted deduction. On November twenty-third defendant likewise sent a draft for 6,059.70 marks, and inclosed a statement of account showing that it was for the invoice of July twenty-sixth less like deductions. This was acknowledged in like manner on December third. On November thirtieth defendant sent .another draft for 6,072.70 marks, being for the first invoice of August second less like deductions, with a statement showing them. ' This was acknowledged in like manner on December twelfth. On December seventh defendant sent a draft for 5,000 marks to be applied on account, without any statement of the account, and on the fourteenth, the twenty-first and the twenty-eighth of the same month a draft for the same amount, which remittances were promptly acknowledged as they were respectively received. • On the 9th day of January, 1907, the defendant inclosed to plaintiff’s assignor a draft for 5,799 marks, and inclosed therewith a statement showing a balance of account for 8,000 marks for which he said he would remit the next week. This statement of account showed that the remittance was on account of the second invoice of August second, and the invoice of August seventeenth, and another of July twenty-fifth for 68.-20 marks which has been paid and is not involved in this action, less an item given as “deduction 3,246.70” in a column relating to marks. There was also inclosed another statement which showed that this deduction was, likewise on account of the 2 marks per kilo and the discount and duties on 1,288 kilos only and not on the entire invoices con- . cerning which the remittance was made, and showed that, it was arrived at on the theory that the defendant was entitled to receive 3,800 kilos at 13 marks per kilo and had already deducted from prior invoices on 2,512 kilos on that theory, leaving a balance .of 1,288 kilos. On the twenty-first of January plaintiff’s assignor wrote defendant acknowledging the receipt of. the draft for 5,799 marks and in its letter stated, “ We regret that we cannot' accede to your deduction of M. 3,248.70 and refer with respect to this to ours of December 12th, 1906,” in which it had asserted the correctness of its claim as already stated. On the twenty-third of January the- defendant inclosed a draft to plaintiff’s assignor for 8,000 marks and .with it a letter as follows: “We enclose draft for M. 8,000 in full settlement to August 17th inclusive. Please acknowledge receipt and oblige.” Ho statement of account appears to have been inclosed with this remittance, but it -is manifest that it had reference, to the 8,000 marks shown as a balance on the account inclosed with the remittance of January ninth, and which defendant had promised to send the next week. The draft itself contained no condition and it does not appear when it was used by plaintiff's assignor.. It is important to note that this letter inclosing the draft in “full settlement to August 17th inclusive” is somewhat indefinite with respect to what it was -intended to be in full settlement of, and it did not pointedly inform, plaintiff’s assignor that it was only at liberty to accept and use the draft on condition that it waive all claims or any particular claim it had against the defendant. It is. further important to note that the parties concededly had had considerable correspondence concerning this and two other claims to which reference will be made presently, and that at no time did the defendant assert a right or take a decided stand to the effect that he was entitled to these deductions and that he would not yield, otherwise than by making these counter charges, and it appears that for four, months after this time there were negotiations between the parties personally or through their agents and by correspondence with respect to the balance claimed by plaintiff’s assignor to be due, and at no time until the service of an amended answer herein did the defendant claim that there had been an accord and satisfaction by this remittance and letter; but on the contrary he consented to confer with plaintiff’s assignor and to call at its place of business in Cologne with a view of negotiating a settlement of the controversy, which appointment, however, he appears to have been unable to keep, and when the plaintiff’s assignor again wrote him with reference to its claim he failed to answer the letter and thereupon this action was brought. It is - to be noted also that the letter inclosing the draft, the use of which by plaintiff’s assignor is now claimed to have been an accord and satisfaction, requested an acknowledgment of its receipt. It appears that plaintiff’s assignoi1, pursuant to this request for an acknowledgment of the receipt, promptly on receiving the draft wrote the defendant on February fourth acknowledging the receipt of the draft, and in its letter, referring to the receipt of the draft, said, “ which we have credited to you on account.” There is some room for argument under the decisions of the Court of Appeals in Nassoiy v. Tomlinson (148 N. Y. 326) and Fuller v. Kemp (138 id. 231) that the acceptance and use of the draft constituted an accord and satisfaction with respect to the claim of plaintiff’s assignor to recover 2 .marks per kilo on the 1,288 kilos of the invoices in payment for which that remittance was made, but upon no' theory can it be even plausibly contended that it constituted an accord and satisfaction with respect to the plaintiff’s • claim concerning the remaining 2,512 kilos, and we are of opinion that it did not constitute an accord and satisfaction at all, at least not as matter of Jaw, and that at most a question concerning the claim with reference to the 1,288 kilos was presented as to the intention and understanding of the.parties which was one for the jury to determine. In so far as an accord and satisfaction witli respect to the claim of the plaintiff’s assignor concerning' the- 2,512 kilos is deemed to be predicated upon the acceptance and use. of the draft, it is precisely the same as an attempt by. a debtor to pay a part of a conceded indebtedness and impose a condition that the acceptance of part should discharge the liability in full. The rule lias not yet been carried to that extent in this jurisdiction, and it has been held that in such case, there is.no consideration for the alleged accord and satisfaction to rest upon. (Bolen v. Crosby, 49 N. Y. 183; Bloomington Mining Co. v. Brooklyn Ice Co., 58 App. Div. 66; affd., 171 N. Y. 673 ; Kelley v. Lawrence Brothers, 78 App. Div. 484; Shamley v. Koehler, 80 id. 566 ; .affd., 178 N. Y. 556.) I am of opinion, also, that as matter of law the alleged claim that this constituted ail accord and .satisfaction is limited to-the claim of the plaintiff’s assignor concerning the 1,288 kilos of the invoices contained in the statement of the account on which tire balance of the 8,000 marks was struck and for which the remittance was subsequently made. At this time two other claims were in controversy "between ,the parties. The plaintiff’s assignor had a-claim against the defendant for 1,886.19 marks-for duties paid on an invoice of meteor shipped on the-2d day of January, 1906, on which the defendant had remitted in full, except for the duties, on. the 29th of March, 1906, before this contract was made. The plaintiff’s assignor also had a claim' against the defendant for 1 mark per kilo on the meteor shipped on the eighteenth day of June, the same having been invoiced at 20 marks per kilo-and the defendant having remitted only 19 marks per kilo, on the theory that the price to dealers in America had been reduced and that he was, therefore, entitled to the deduction. It was never contended by the defendant that there was ever any accord and satisfaction with reference to these two claims, and the defendant’s position appears to have been wholly untenable with reference thereto, and-this he conceded pending the trial of this action and paid the claim of the plaintiff’s assignor therefor shortly before " the trial. The correspondence between the parties also shows that the defendant was at all times very much behind in his payments, and indicates that he attempted to justify this to the agent of the plaintiff’s assignor, although not in his correspondence, on the theory that lie was entitled to the artificial silk at 13 marks per kilo. It appears that the plaintiff’s assignor repeatedly urged him to pay more promptly at least what he conceded to be owing, and that then from time to time he made remittances as herein stated. In view of these facts and the way the matter was regarded by both parties after the alleged accord and satisfaction, it cannot be maintained that as matter of law there was any accord and satisfaction, and I am inclined to the opinion that it should be declared as matter of law that there was none; but it is possible that with respect to the claim concerning the 1,288 kilos there may be a question for the jury as to whether the minds of the parties met on an agreement that, the acceptance and use of the draft should constitute a settlement of that claim. The failure of the respondent to reply to the letter of the plaintiff’s assignor, invited by him, by which he was informed that the draft had not been received in full settlement of anything, but had been applied on account, should be deemed an acquiescence on his part in the course pursued, for had the plaintiff’s assignor known that he intended the acceptance and use of the draft to be conditioned upon a waiver and relinquishment of all or any of the claims,, it may well be that it would have retransmitted the draft or returned the proceeds. These facts distinguish the case from the Nassoiy and Fuller Cases (supra), upon which the defendant relies, and I think bring the case fairly within the doctrine of Eames Vacuum Brake Co. v. Prosser (157 N. Y. 289) and Laroe v. Sugar Loaf Dairy Co. (180 id. 367), which distinguish and limit the former cases, and Komp v. Raymond (175 id. 102), Windmuller v. Goodyear Tire & Rubber Co. (123 App. Div. 424) and Strock v. Brigantine, Transportation Co. (23 Misc. Rep. 358).

Another question arises with respect to the right of the plaintiff to recover for the 2,000 kilos ordered by the eablegram'in the transmission of which a mistake was made, and with respect to the defendant’s claim that he was justified not only in selling 2,000 kilos .of artificial silk on the expectation that he would receive it at 13 marks per kilo, but that he was entitled to the reduction on the 3,800 kilos which he had sold before lie learned that the plain tiff’s assignor would not ship at 13 marks per kilo. We are of opinion that as matter of law the plaintiff can only recover on the basis of 13 marks per kilo for the 2,000 kilos, for his assignor should have discovered the full meaning of the cablegram before notifying the defendant that it would make the shipments. It should have been put upon its guard by the reference- in the cablegram to the- fact that the market was falling. The fact, that the defendant had contracted to take 5,000 kilos of the artificial silk at 15 marks per kilo during the remainder of the year does not affect the question. The defendant was not obliged to - Order any goods at that particular time, and when he made sales relying upon its cablegram in answer to his, he had a right to assume that it received the cablegram in an intelligible form, or that it would have asked to have it repeated or have communicated with him. He was, therefore, justified in assuming that the plaintiff’s assignor consented to make the -shipments on the terms of. his order. The claim of the defendant, however, to the effect that he was justified in selling more than the 2,000 kilos on the strength of the cablegram from the plaintiff’s assignor that it would ship the 2,000 kilos, is untenable as matter of law, and, therefore, the plaintiff was entitled to recover on account of the 1,800 kilos.

It follows that the exceptions should be sustained and a new trial' granted, with costs to plaintiff to abide the event.

McLaughlin and Scott, JJ., concurred.

Ingraham, P. J. (concurring):

I concur in the opinion of Mr. Justice Laughlin, except in so far as he holds that the transaction as stated by him constituted an accord and satisfaction as to the 1,288 kilos referred to in the state- . ment of the account on which the balance of 8,000 marks was struck, ■ and for which a remittance was subsequently made. I do not think there was any evidence to justify an accord and satisfaction, or that .any consideration existed to sustain such an accord and satisfaction.

. I also differ from him with respect to the right of the plaintiff to recover for the 2,000 kilos ordered by the cablegram. I think the plaintiff was entitled to recover the full fifteen marks per kilo for all the merchandise delivered. The defendants adopted this method of giving their order. The price fixed by the contract between the parties was fifteen marks per kilo, and the cablegram as delivered to the plaintiff’s assignor contained no limitation as to price.

The views I entertain, however, require a reversal of the judgment, and I, therefore, concur.

Exceptions sustained and motion for new trial granted, with costs to plaintiff to abide event. Settle order on notice.  