
    William H. Barron, Surviving Partner of James S. Barron & Company, Respondent, v. The Brooklyn Heights Railroad Company, a Corporation, Appellant.
    Second Department,
    May 1, 1912.
    Contract — sale — action for balance due — evidence — failure to deliver — accord and satisfaction.
    Action to recover a balance alleged to be due for brushes delivered by plaintiff’s firm to defendant under a contract in writing. It was provided that if the brushes were not delivered pursuant to the terms of the contract the price should be reduced from ninety-eight and one-half cents to seventy cents per brush. Evidence examined, and held, that the court erroneously allowed evidence of preliminary conversations merged in the contract and evidence of modification of contract by conversations between vendees and a person in defendant’s employment unauthorized to contract;
    That the plaintiff failed to make timely delivery of the brushes;
    That there was an accord and satisfaction shown by the acceptance of a check by the plaintiffs in settlement of the controverted account, and by a letter written by the defendants to the plaintiff.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of October, 1911, upon'the verdict of a jury, and also from an order entered in-said clerk’s office on the 6th day of November, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      James W. Carpenter [George D. Yeomans with him on the brief], for the appellant.
    
      John M. Coleman and Walter L. Post, for the respondent.
   Thomas, J.:

Plaintiff has recovered a balance found due for brushes delivered by his firm to the defendant under a contract in writing in the form of a proposal by defendant on Novem-i ber twelfth and an acceptance by plaintiff’s firm on November 1Y, 1903. The court erroneously allowed evidence of preliminary conversations merged in the contract, and evidence of modification of the contract by conversations between the vendors or their agent, and one Gove, a person in defendant’s employment, unauthorized to contract for it. Gove was in defendant’s mechanical department, and dissociated from any business relation to defendant that gave him apparent authority. The contract required delivery of 400 brushes within fourteen days of the date of the proposal, and completion of the order at the rate of 100 brushes per day thereafter, and in case of default it was stipulated that the price per brush should be reduced from ninety-eight and one-half cents to the amount of the lowest bidder, which was seventy cents, of which penalty the vendor had been specifically advised. This evidence of modification of the contract affected the question of due performance. The defendant pleads failure to make timely delivery, and the evidence conclusively showed nonperformance in that regard. The proposal is dated November 12, 1903, and the vendors began delivery on November twenty-fourth. It was their duty to deliver 400 brushes within fourteen days from November twelfth, so that the last day to deliver fell on November twenty-sixth. But by that date it had delivered but 56. If the deliveries were due within fourteen days from the time of acceptance, that is, November 1Y, 1903, the time expired December first, when the deliveries "were only 254. Nor were as many as 400 brushes delivered earlier than December fifth, nor were 100 brushes delivered on any one day until December fourteenth, but from and including that date more than 100 brushes per day were delivered. This is the plaintiff’s evidence, and in view of it his contention that he was retarded by defendant’s insistence upon premature deliveries does not admit of serious discussion. There was no occasion for protest on defendant’s part, nor was there waiver by acceptance. The failure to deliver according to contract of itself reduced the price per brush from ninety-eight arid one-half cents to seventy cents. The number delivered was 2,500 less 102, or 2,398, which, at seventy cents per brush, would be $1,6Y8.60, and admittedly there has been paid $1,665.29. The defendant’s contention that 19 brushes were not delivered was a question for the jury. Aside from such contention, the amount due could he only $13.31 and some interest. Was there accord and satisfaction % The defendant claimed by letter on January 27, 1904, that on account of delayed delivery the price became seventy cents; that the 19 brushes had not been received; that this letter was written after the vendors were advised of the claim of shortage and alleged failure to make deliveries. The plaintiff gave evidence through Mr. Barron and Mr. Copeland that they did not receive the letter, but that does not show that it was not received by the vendors. It was received in evidence as a letter by consent and was proved to have been sent. In this state of the contention a' voucher check was sent to and used by the plaintiff for the exact balance shown due by the letter of January twenty-seventh, and it stated that it was received in full of the above account,” and it appeared on its face that it was in payment of a bill rendered, the net amount of which was stated as the sum paid. The bill rendered was for 2,500 brushes at ninety-eight and one-half cents, and Van Cott, defendant’s purchasing agent, wrote them correcting the bill in the letter of January twenty-seventh. The vendors drew the money on March twenty-fifth, knowing full well that it was tendered in full settlement, and later under date of April first acknowledged receipt of it and inclosed a statement showing a balance due. I consider that the vendors accepted the check tendered in settlement of the controverted account.

The judgment and order should be reversed and a new trial ordered, costs to abide the event.

Jenks, P. J., Hirsohberg, Carr and Woodward, JJ., concurred.

Judgment and order of the County Court of Kings county reversed and new trial ordered, costs to abide the event.  