
    J. Felix Nassoiy, App’lt, v. David H. Tomlinson et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    Accord and satisfaction—Evidence.
    In an action for a balance of commissions on a sale of real estate, the defense was that a payment of $300 was in full. It appeared that the payment was made by check of C., enclosed in a letter which said “ I send you a check for $300, your commission on the sale, please sign and return the inclosed voucher.” No evidence was given that the voucher was inclosed. The plaintiff replied, claiming $1,500, and called on 0. reiterating his claim which 0. refused to pay. Six months later plaintiff collected the check and sent O. a receipt “in part payment for commissions.” Plaintiff was nonsuited on the ground that the check was accepted by him in full payment and' satisfaction of his claim. Held, error; that no presumption of consent to satisfy the debt would arise under the circumstances.
    Appeal by the plaintiff from so much of a judgment, entered in Niagara county on an order of the court, as dismissed the plaintiff’s complaint as to the second cause of action stated therein. '
    
    
      F. A. Dudley, for app’lt; J. E. Pound, for resp’ts.
   Dwight, P. J.

The cause of action upon which the plaintiff was nonsuited was for a balance of commissions alleged to be due to the plaintiff on a sale of real estate by him for the defendants. The employment of the former, and the fact of a sale effected by him of a farm of sixty acres at the price of $30,000, were not in . dispute. The defense insisted upon was payment of $300, or one per centum of the consideration realized, which was alleged ta-ha ve been received by the plaintiff in full of his demand. The $300 was in fact received by the plaintiff, but, as he alleged, on-account only, leaving due to him the balance of $1,500, or five per centum on the sale, which the plaintiff alleged was the commission agreed upon by the parties.

The $300 was paid by check of one Chauncey, an agent of the? defendants, transmitted by mail from ISTew York to the plaintiff at Suspension Bridge, enclosed in a letter of Chauncey, of which; the following is a copy :

“ New York, June 20, 1887.
“ Dear Sir—I heard to-day from Mr. Griffith that the sale to Weston was completed on Saturday. I send you a check for $300 (1 per cent, on $30,000), your commission on the sale; please sign and return the enclosed voucher. I wish you would see that the tax rolls are corrected, etc.
“ Yours truly,
“ (Signed), Elihu Chauncey.”'

There is no paper in evidence which answers to the “ voucher mentioned in the letter, and no evidence that any such paper was in fact enclosed. To this communication the plaintiff made the following answer:

“ Suspension Bridge, N. Y., June 23, 1887.
“ Elihu Chauncey, Esq.:
“Dear Sir—Yours of the 20th at hand. I don’t know what you mean by sending me a check for $300. I want my 5 per cent commissions on the $30,000. I got you $5,000 more than you could have got anybody else to get for you. Please answer at once. Yours truly,
“(Signed), J. Felix Nassoiy.’’

To this letter Chauncey made no reply; but shortly afterwards the plaintiff called on him in ISTew York and reiterated his claim to a commission of five per cent, which Chauncey refused to pay, or to pay him anything in addition to the $300. The plaintiff held the check until the next January, when he collected it and sent a receipt to Chauncey for the money “ in part payment for commissions, etc.”

The plaintiff was nonsuited on the sole ground that the $300 was received and accepted by him in full payment and satisfaction of his disputed claim for $1,500. We think the ground of the decision was untenable, and that the nonsuit was error. There-is no pretense that the plaintiff did, in fact, consent to receive the $300 in full; all the evidence is "to the contrary. He refused in terms to accept it in full, and receipted for it, in terms, as part payment only. The contention is that the payment having been tendered as in full, and accepted by the plaintiff, he is, in law, conclusively presumed to have accepted it in full. This propositian cannot be maintained. Consent as an element of a contract is a fact; whether- or not it exists is a question of fact to be determined upon the evidence. It cannot be determined upon any conclusive presumption of law short of an equitable estoppel There was no such estoppel in this case. The defendants owed the plaintiff his commissions on the sale of the farm. He claimed five per cent, and the defendants, by their agent, sent him a check for one per cent, which the agent of the defendants denominated '“your commissions on the sale.” The check was no indication that it was intended as payment in full, and the voucher which fhe agent seems to have intended to enclose for the plaintiff’s signature was omitted. Under these circumstances the act of the ■plaintiff in collecting the check and applying the avails in part payment of his claim, did not in any measure estop him to deny ■.that he had accepted it in full. He had neither done nor asserted .lanything which misled the defendants. He had received what, upon the defendants’ assertion, was no more than his due, and, ’ upon his own, was much less, and with full notice to them that it was not accepted in full, he had applied it in part payment of the indebtedness as claimed by him.

Ho presumption of consent to satisfy the debt could possibly :arise ’under these circumstances, and without such consent there was -no -accord and satisfaction. Fuller v. Kemp, 40 St. Rep., 672; McKeen v. Morse, 1 Blatch. U. S. Ct. App., 7. The cases of Looby v. West Troy, 24 Hun 80, and Hills v. Sommer, 53 id., 392 ; 25 St. Rep., 1003, cited by counsel for the defendants, are distinguished iby their facts from the case in hand, and not necessarily in conflict with the principles herein stated.

We think the evidence in this case fails of establishing the defense of an accord and satisfaction, and, accordingly, that the judgment on the second cause of action stated in the complaint .must be reversed and a new trial granted.

Judgment appealed from reversed and a new trial granted, with •costs to abide the event.

Macomber and Lewis, JJ., concur.  