
    Frank Hills et al., App’lts, v. Frank L. Sommer et al.,. Resp’ts.
    
      (Supreme Court General Term, First Department,
    
    
      Filed July 9, 1889.)
    
    Accobd and satisfaction—What constitutes.
    Defendants ordered certain fruit from plaintiffs. On its arrival they notified plaintiffs that part of it was in a defective condition, and claimed a rebate on the price, which was refused. Subs;quently plaintiffs drew on defendants, and the draft was returned with the endorsement, “amount incorrect; will remit it,” and defendants sent a draft for the amount which they had stated they would pay. Plaintiffs received and collected the draft, and bring action to recover the balance. Held, that the acceptance of the draft constituted a valid accord and satisfaction, and that defendants were entitled to judgment.
    
      Louis C. Ledyard, for app’lts; Mr. Palmer, for resp’ts.
   ' Cullen; J.

This action is brought for a balance due on goods sold and delivered. The defendants, fruit dealers in St. Joseph, Mo., ordered of the plaintiffs, wholesale dealers in New York city, shipment of certain boxes of lemons at an agreed price. On the arrival of the goods in St. Joseph the defendants notified the plaintiffs that a part of the lemons were defective in quality and condition, and that they would not receive the goods unless a rebate in price ■was made as to such part. This rebate the plaintiffs refused to allow. Subsequently the plaintiffs drew their draft upon the defendants for the full invoice price. This draft was returned unpaid, with the endorsement Amount incorrect; will remit.” Afterwards the plaintiffs. wr,ote to the defendants stating the fact of the return of the draft with the endorsement, and asking the defendants to advise them what they intended to do about the matter, or to send the money.

To this the defendant answered: “We enclose herewith draft on The American Exchange National Bank of New York, for $1,639.25, in payment of invoice as below, July twenty-eighth. Interest on amount past due, $3.25.”

The draft enclosed was for the amount at which the defendants had expressed their willingness to receive the goods.

The plaintiffs received and collected the draft, and then brought this action to recover the balance.

Upon the trial a verdict was directed for the defendants, and the exception to such direction directed to be heard at the general term.

Upon the facts stated we think the verdict was properly directed. It is unnecessary to determine whether the defendants could accept part of the shipment and reject the remainder, or whether there was a warranty that would survive^ such acceptance. Whether right or wrong, in their view of the law, the defendants disputed their liability for the amount claimed. There was no request to submit to the jury the question of the bonafides of this dispute. The fact was assumed, and a claim may be honestly disputed upon a matter of law as well as a matter of fact. Woodruff v. Woodruff, 52 N. Y., 53. Therefore, payment of a less amount than that claimed would constitute a valid accord and satisfaction. Upon the correspondence between the parties, we think it unquestionable that the defendants sent the draft to the plaintiffs in compromise and satisfaction of ;the claim.

The plaintiffs had been notified of the defendants’ complaint as to the condition of the goods, and their refusal to receive them, except at a specified reduction in price.

The draft drawn by the plaintiffs had been returned by the defendants as incorrect in amount. In return to the further letter of the plaintiffs the defendants sent the draft for the exact amount they had offered to allow; the letter enclosing the draft, stating that it was sent in payment of the invoice of July twenty-eighth. There can be no misconstruction of this correspondence. It is susceptible of but one interpretation: that the defendants tendered the draft in settlement of the claim. The court, therefore, properly refused to submit the question to the jury. The plaintiffs were bound either to reject the draft, or' by accepting it to accede to the defendants’ terms. Looby v. The Village of West Troy, 24 Hun, 78; Grinnan v. Platt, 31 Barb., 328.

'The exception should be overruled, and judgment ordered for defendants on the verdict.

Van Bkunt, Oh. J., concurs.  