
    Mendel Schwartz, Jacob Schwartz and Max Schwartz, Respondents, v. Joseph Hirsch and Bernhard Hirsch, Appellants.
    (Supreme Court, Appellate Term,
    December, 1907.)
    Accord and Satisfaction — Payment of less sum than dire — Checks and drafts; Application of rule to disputed demands.
    Where there was a dispute between the parties to an agreement for the sale of goods as to whether the buyers were liable, in consequence of the failure of the goods to conform to sample, for more than the first of three, allotments of goods, less customary commissions, and the buyers sent their checks for the conceded amount and notified the sellers that they sent it in full satisfaction and settlement of all claims by the sellers .and in settlement of all disputes and matters between the parties, and the sellers retained the check, indorsed it and collected the amount of it, though they immediately wrote acknowledging its receipt and that they intended to credit it on full account and demanded payment of balance due, the sellers by accepting it were bound by the conditions imposed and the facts constituted an accord and satisfaction.
    Appeal by the defendants from a judgment in favor of the plaintiffs, rendered in the Municipal Court of the city of New York, eleventh district, borough of Manhattan.
    Wentworth, Lowenstein & Stern (Edwin F. Stern, of counsel), for appellants.
    Morrison & Schiff (Jacob B. Schiff, of counsel), for respondents.
   McCall, J.

I do not see, unless we are to reject the rulings of our appellate courts, but that an absolute case of accord and satisfaction has been demonstrated in the proof submitted upon the trial of this case. The learned trial justice in disposing of the issues seems to have heen controlled by the idea that the claim was a liquidated .one, the amount due certain, and the check sent represented an amount that would have to be paid in any event, as, concededly, the defendants had received, retained and used the merchandise forwarded . at least up to a value equivalent to the sum so paid, and under such conditions the claim of accord and satisfaction was not tenable. The facts may be practically taken as conceded. The defendants purchased from the plaintiffs a certain bill of merchandise, predicating the same upon a sample submitted by a traveling salesman; the delivery of the goods was to be made in three separate allotments and the first allotment, representing a value of about thirty-nine dollars, was received, used and partially disposed of by the defendants. Under the claim of the defendants that the goods were defective in the material used or manufacture thereof, the defendants refused to receive any but the allotment, returning the rest to the plaintiffs and inclosing a check for thirty-five dollars and ten cents in payment, the said amount representing the value of the first allotment, less a sum allowed the defendants under some custom of the trade for commissions. This check was on an Oklahoma bank and was returned to defendants in a letter dated December 14, 1905. Thereafter, and on February 7, 1906, the defendants wrote a letter to the plaintiffs inclosing a check on the Citizens’ ¡National Bank of ¡N"ew York for the same amount, payable to the plaintiffs; and by the terms of the letter the defendants notified the plaintiffs that the check was forwarded in full satisfaction and settlement of all claims by the plaintiffs and in settlement of all disputes and matters between the plaintiffs and defendánts; and this check the plaintiffs retained, indorsed and collected the amount for the payment of which it provided. It is true that the plaintiffs immediately wrote to defendants acknowledging the receipt of the check and that they intended to credit it on full account and demanded payment of balance due. ¡Now what does such a state of facts show ? First. Unqliestionably that the contract was an entire one, even though the delivery of the goods was by instalment, and no right of action accrues, nor can a recover) be had, until the whole quantity contracted for is delivered (Nightingale v. Eisman, 121 N. Y. 288); and by the doctrine announced in the same case (50 Hun, 189) these defendants had a right to receive and use the first allotment without waiting to see' whether the plaintiffs would fulfill their contract by delivering the residue. So that it will be observed that it was erroneous to assume that In any event the defendants on their own showing were liable to the plaintiffs for $35.10.” Second. A genuine and unquestioned dispute between the parties; and under such circumstances the acceptance and retention of this check constituted a complete accord and satisfaction, and this, too, whether the claim is to be regarded as liquidated or unliquidated. Le Page v. Balance & Grosjean Mfg. Co., 98 App. Div. 179. The situation is not ameliorated by the writing of February fifteenth, stating the amount received would be credited to the full account and demanding payment of balance; for, when that check was sent in full payment to the plaintiffs, they either had to accept it under the conditions imposed or return it; they could not keep it and impose other conditions; the acceptance of the money involved the acceptance of the conditions. Fuller v. Kemp, 138 N. Y. 231; Dunn v. Whalen, 120 App. Div. 729; Williams v. Bienenzucht, 51 Misc. Rep. 209.

For the reasons thus advanced, this judgment must he reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Ford, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  