
    Frank Whitaker, Respondent, v. John F. Eilenberg, Appellant.
    
      Contract to buy grapes — remittance of check for less than the contract price, with a statement that the grapes were below the contract standard — the vender, if he accepts the checks, cannot thereafter recover the balance of the contract price.
    
    A commission merchant" made a contract with a grape grower to purchase the latter’s crop of grapes then upon the vine at eighteen dollars per ton. The merchant found no fault with the first few shipments of grapes and paid the full contract price therefor. Upon receiving each of the next three or four lots, he notified the grower that the grapes were below the contract standard and inclosed a check for the price of the grapes, figured upon the basis of sixteen dollars instead of eighteen dollars per ton. The grower received the communications and checks and retained and used the latter. He expressly accepted the reduction in the first instance and made no' complaint or protest in the other instances, until several months later.
    Thereafter there was a frost in the territory including the grower’s vineyard and the commission merchant telegraphed him, “grapes since the freeze will be sold to your account,” and also wrote him the following letter: “ We find, this being our first car since the freeze, that the grapes show the cold very badly and will be compelled to sell them to your account. We wired you to-day thinking perhaps you would prefer to consign to some one else. We will do the very best we can for you under the circumstances,” etc. The grower made no reply to such communications and subsequently shipped to the commission merchant three lots of grapes. The latter disposed of each lot for the grower’s account and sent him a full statement of the transaction, inclosing checks with such statements for the full balance due, in accordance therewith. The grower retained and used the checks without making any protest or objection of any kind until some months later.
    In an action brought by the grower against the commission merchant to recover the balance due for the grapes in accordance with the terms of the original contract, it was
    
      Meld, that the plaintiff could not recover;
    That the acceptance by the plaintiff of the commission merchant’s checks constituted, as matter of law, an accord and satisfaction, even though such checks did not themseves explicitly state that they were in full payment, it appearing that the plaintiff fully understood that they were so intended;
    That it was error for the court to submit the case to the jury upon the theory that it was for them to say whether the parties had made a new contract which took the place of the original contract and made the defendant’s payments sufficient.
    Appeal by the defendant, John F. Eilenberg, from a judgment of the County Court of Yates county in favor of the plaintiff, entered in the office of the clerk of the county of Yates on the 22d day of June, 1901, upon the-verdict.of' a jury, and also from an order entered in said clerk’s office on the 15th day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    The action was originally commenced in a Justice’s Court where a judgment was recovered bv the plaintiff. The defendant appealed to the County Court and demanded a new trial.
    
      Thomas Carmody, for the appellant.
    
      Calvin J. Huson, for the respondent.
   Hiscock, J.:

This controversy springs out of the sale and delivery of a crop of grapes by plaintiff to defendant. Part of them have concededly been paid for in full. Upon the remainder plaintiff seeks to recover an alleged unpaid balance of about $150 computed upon the basis of prices fixed in the original contract. Although having accounted for quite a portion of the crop only at a sum below such prices, defendant nevertheless urges that he has been discharged from all further obligations because plaintiff has accepted and retained his checks therefor knowing that they were, intended to be in full payment on account of the inferior quality of the grapes,

Plaintiff was a grower of grapes in Tates county. Defendant-was a commission merchant in Philadelphia. They had had dealings before those in question." September 19, 1896, apparently in answer to a letter from him, plaintiff wrote defendant, “ I -have a good crop of grapes * * * and they are very fine * * * would sell at a fair price. * * * The crop is much better than last year; but very little rot.” A short time thereafter defendant went to plaintiff’s vineyard and, after a limited examination, made a contract to' purchase his grapes, then upon the vines, at eighteen dollars per ton. There is some conflict about some of the terms of the contract which was not reduced to writing. Defendant claims that he kept calling attention to rotten berries' in the bunches and asked plaintiff what was to be done with them, to which the latter replied, they would be taken out as much as possible.” “ He said he would put the grapes up in a saleable condition.” Plaintiff differs with him some as to what was said upon this subject.

The shipments were commenced about October first. No fault was found with the first lots, and the full contract price was promptly remitted for them. Between October sixteenth and twentieth three or four lots were shipped which defendant claimed then, and testifies now, were helow his contract standard. Upon receipt of each lot he plainly and fairly made this complaint to plaintiff, figured up the price at sixteen dollars instead of eighteen dollars per ton, and remitted the full sum and balance due upon that claim and basis. Plaintiff received his communications and check's and retained and used the latter. He expressly accepted the reduction in the first instance and made no" complaint or protest in the others except that in January following he sent a bill for a balance due upon all the grapes shipped computed upon the basis of contract prices.

About October eighteenth there was a frost in the territory including plaintiff’s vineyard. Apparently the grapes subsequently shipped by him were still upon the vines. October twentieth defendant telegraphed him, “ Grapes since the freeze will be sold to your account,” and the same day wrote him, “We find, this being our first car since the freeze, that the grapes show the cold very badly and will be compelled to sell them to your account. We wired you to-day thinking perhaps yon would prefer to consign to some one else. We will do the very best we can for you under the circumstances,” etc. Plaintiff duly received these communications, but made no reply thereto, shipping thereafter to defendant three lots of grapes. Defendant probably had not, as matter of fact, received from plaintiff any grapes after the frost when he wrote his letter referring to his first car since the freeze,” but may have received such grapes from others. At any rate, he testifies that these last three lots, received on and after October twenty-seventh, were full of dry and frozen berries, and there is no satisfactory contradiction of this. In accordance with his telegram and letter, he disposed of these grapes for plaintiff’s account, as he claims, at the full market price and without any charge for commissions. He wrote plaintiff and sent him a full statement showing what he had done; that he had sold the grapes for his account; the amount realized upon the sales and the charges against the same for freight, cartage, etc. He inclosed checks with such statements for the full balances due in accordance therewith. The plaintiff received the letters and statements and checks. He retained and used the latter, making no protest or objection of any kind except the bill herein-before referred to.

Defendant claimed upon the trial, as he does upon this appeal, that the checks sent to plaintiff, when accepted and used by him under the circumstances referred to, constituted a full payment and satisfaction of all claims on account of the grapes involved in controversy. He presented this proposition in various forms upon the trial. The county, judge ruled against him and attempted to cover the subject by allowing the jury to say whether the parties by their acts above referred to made a new contract which took the place of the original one and made defendant’s payments sufficient. We believe he committed error therein. .

In the first place, we do not think that there was any issue of fact at this .point to be submitted to the jury.

The material acts of the parties by which are to be established their respective rights with reference to the shipments of grapes and remittances'therefor, are not the subject of conflicting testimony, and do not permit different and contradictory inferences. Upon the other hand, in our opinion, they are undisputed and simple, and lead plainly and decisively to but one line of conclusions.

In the next place, we do not think that the learned county judge was entirely fortunate and accurate in defining the questions between the parties as one whether a new contract had been made between them. While it may be said that in a very general way this issue was involved, the more exact and specific question was whether the acceptance by plaintiff of defendant’s checks, under all of the circumstances, constituted a payment and satisfaction of all claims, and this even though no new contract had been made covering the disputed shipments, and even though defendant was not justified in his original contention that the grapes were below the grade he was entitled to, and that he had a right, therefore, to treat them upon a basis different from that provided in the original contract. We conclude that this question must be answered, as matter of law, in the defendant’s favor.

Upon receipt of the two shipments in dispute here which reached him, respectively, October nineteenth and twentieth, defendant clearly and plainly took the position with plaintiff that they were inferior in quality, and that he was only willing to allow eighty cents per hundred instead of ninety cents, and he remitted the full balance due upon that theory. Upon October twentieth he as clearly and plainly notified plaintiff that on account of the frost he would sell the grapes thereafter received on his account, instead of accepting them under the contract. Plaintiff had the right upon receipt of that notice either to treat and proceed against defendant as having repudiated his contract or to ship grapes under the new arrangement proposed by him. He chose the latter. But independent of this, when defendant received the thrée shipments sent after such notice, he fairly and explicitly took the position that the grapes had been injured by the frost, were inferior in quality, and that in accordance with the notice theretofore served he had disposed of them for plaintiff’s account, and he again remitted the full balance due upon such disposition.

In each case plaintiff, with full knowledge of defendant’s position and claim and clearly understanding that it was intended to be in full payment of the shipment in question, accepted, retained and collected the money upon defendant’s check. He did not even make any protest or objection until several months afterwards. He fully understood the conditions upon which the checks were sent, and, when he accepted and used the latter, we think it must be held that he accepted and assented to the conditions which accompanied them.

It is true that there must be some sufficient reason and consideration to render a payment of less than the amount originally and primarily due a full satisfaction thereof. If plaintiff’s claim were liquidated and undisputed, defendant would not be able to satisfy the same by paying part thereof. But in this case there is a sufficient consideration for treating the payments made as a full satisfaction. Independent of the question whether defendant by his notices of October twentieth established a new relation which should govern the future shipments, there is nothing which impugns the apparent good faith of his claim that the shipments received by him on and after October nineteenth were inferior and below the grade called for by his contract. Plaintiff has scarcely questioned the fact that the grapes were more or less damaged and defective. He does, it is true, dispute somewhat defendant’s claim as to what the terms and meaning of the original contract were. But this does not at "all deprive defendant of the force of his position, duly taken, that the goods which he received were not what he was entitled to, thereby furnishing a reason and consideration for a less price than originally fixed; that he has paid this and plaintiff accepted it, thus making a complete settlement and satisfaction of their dealings.

We do not regard it as of any significance in this case that the checks sent did not upon themselves explicitly state that they were in full payment. The letter or account or both sent with each one clearly showed that it was - intended to be in full settlement of the balance for the given shipment in question. Plaintiff understood this clearly enough.

We think, therefore, that these checks operated as a payment and satisfaction and that plaintiff was not entitled, to recover the balance due in accordance with the terms of the original contract, and that error was committed in the trial and submission of the case within the views expressed in Wisner v. Schopp (34 App. Div. 199); Fuller v. Kemp (138 N. Y. 231); Nassoiy v. Tomlinson (148 id. 326).

There is some controversy between the parties about some covering put upon the grape boxes and about the alleged failure of defendant to return to plaintiff certain boxes. These items only involve a small amount, and inasmuch as a new trial must be had, they do not seem to require consideration.

The judgment and ordér appealed from should be reversed and a new trial granted.

McLennan, Spring, Williams and Davy, JJ,,. concurred.

Judgment and order reversed upon questions of law only, the facts having been examined and no error found therein, and new trial ordered, with costs to the appellant to abide the event.  