
    Taylor v. Nussbaum & another
    (Before Oakley, Ch. J., Campbell & Emmet, J.J.)
    June 9;
    June 11, 1853.
    When cattle, sold without a warranty, are found, when slaughtered, to have been bruised, and the seller for that reason makes a deduction from the original price, and accepts a less sum in satisfaction, he is bound by the settlement— the equity of the deduction makes it a good accord and satisfaction.
    When the claim of a creditor is disputed in good faith, and to settle the dispute he abates a part of his demand, the settlement, as a compromise, is valid and binding, although he was not legally bound to make the abatement.
    An agent, having a discretionary power to sell goods and collect the price, has an implied authority to make any deduction from the original price that could have been made by his principal.
    Judgment for defendants, with costs.
    Case on verdict, subject to the opinion of the court at general term.
    The action was tried before Mr. Justice Bosworth and a jury on the 8th of March, 1853. The pleadings are as follow.
    New York Superior Court.—City and County oe New York.—Eli O. Taylor v. Philip Nussbaum & Julius Strauss. —The complaint of Eli 0. Taylor, the above-named plaintiff, shows to this court, that, at the city of New York, on or about the 1st day of April, 1851, he sold and delivered to Philip Hussbaum and Julius Strauss, the above-named defendants, twenty head of cattle, for which said defendants promised and agreed to pay the sum of fifty dollars per head; that said defendants have since said sale paid on account of such cattle the sum of nine hundred and eleven dollars, and that said defendants are still indebted to Mm, the said plaintiff, for a balance of the moneys agreed to be paid for said cattle, in the sum of eighty-nine dollars, for which amount, with interest from the first day of April, 1851, the said plaintiff claims judgment against the said defendants.
    
      Eli O. Taylor v. Philip Nussbaum & Julius Strauss.—■ City and County of New York, ss. September 7, 1852.—Said defendants, by A. J. Perry, their attorney, answering the complaint in this action, say, that the said sum of nine hundred and eleven dollars so by them paid to plaintiff, by reason of such purchase, was paid by these defendants, and was received by said plaintiff as and for a full and complete accord and satisfaction of any and all claim and demand whatever, which the said plaintiff had against these defendants by reason of the sale and delivery of the cattle mentioned in the complaint.
    Defendants further answering, say, that in the course of their business they slaughtered the said cattle, and then first discovered that the said cattle had been much bruised, which bruising greatly injured the beef, causing these defendants much damage, and that it was in consideration thereof that the said plaintiff agreed to take, and did take, the said sum of nine hundred and eleven dollars in full satisfaction of his said original claim and demand of one thousand dollars for the said cattle.
    Upon the opening of the case, the counsel for the plaintiff moved for judgment on the pleadings.
    The court reserved its decision on such motion.
    The defendants’ counsel then called as a witness,
    
      Max Doctor, who, being sworn, testified as follows:—I know the plaintiff; I am in the employ of the defendant Nussbaum; the defendants bought from the plaintiff the cattle in" question; I saw the cattle after they were slaughtered; the beef was in bad condition; the cattle were slaughtered the same day they were purchased; I was present at a conversation between plaintiff and defendant Nussbaum; this conversation took place in the street after the cattle were slaughtered; we met the plaintiff, and Nussbaum told plaintiff the cattle were bruised; plaintiff said he had nothing to do with it, that Belden collected the bill; what he threw off the plaintiff would be satisfied with; one thousand dollars was the price to be paid for the cattle; I know Belden; I have a receipt for money •paid Belden for the cattle; I have seen Belden write; I know his handwriting; the receipt now shown me is in his writing.
    
      The receipt was here read in evidence, and is in the words and figures following, to wit:
    New Yorki, April 23d, 1851.
    Received of Philip Hussbaum and Julius Strauss, nine hundred and eleven dollars, in full settlement and satisfaction, for twenty head of cattle, sold by Eli O. Taylor to them on the 1st day of April, 1851, for the sum of $1,000 00.
    W. H. Beldeh.
    $911 00
    I don’t recollect that I was present when the money was paid.
    On being cross-examined, the witness further testified: I believe the plaintiff lives in Albany; I saw him before the sale; I don’t know who was present at the sale except the plaintiff and defendants; I don’t know as Belden was; I understand the sale was made by plaintiff; the conversation above referred to took place a week after the sale ; myself, plaintiff", and Hussbaum were the only persons present at the time of the conversation ; Taylor knew we were dissatisfied with the cattle; Taylor said I suppose Belden will do what is right; whatever Belden would do he was satisfied with; I did not see plaintiff afterwards; saw Belden and defendants together after conversation ; can’t recollect that I saw Belden sign the receipt; Belden called at slaughter-house once or twice; saw Belden at slaughter-house after conversation ; the first time I saw Belden at slaughter-house, he would only allow $50 for bruises; I was not present when Belden called the second time; Belden said he was authorized by plaintiff to do what was right; he said he would allow what was right; Belden and defendant did not agree at that time as to the amount to be deducted; I was not present at the time of the sale of the cattle to defendants; the sale was not made the day the plaintiff first called at the slaughter-house; the cattle were not in the city then; the sale was made the next day.
    On being again directly examined, said witness further testified: I heard Belden and defendants talk about amount of deduction to be made; Belden would not allow more than $50; this was after defendant had conversation with plaintiff in the street; defendants wanted $150 deducted for cattle being bruised; Belden on this occasion stated that he had seen plaintiff, and plaintiff had told him to make a deduction of every thing that was right; when defendant made remark about deduction of $150, Belden offered him $50; defendant said he could not stand it; it was not enough; this was a few days after the conversation with plaintiff in the street.
    The defendants here rested their case.
    The plaintiff then called as a witness,
    
      William H. Belden, who, being sworn, testified as follows r I know the plaintiff and defendants; I was the agent for the plaintiff for the sale of the cattle in question ; my brother, who is my partner, sold the cattle to defendants; I can’t say whether the plaintiff was in the city at the time of the sale; he was in the city a day or two before the sale; two weeks after the sale I called on the defendants to collect the bill; I saw Nussbaum; I can’t say whether or not the last witness was present when I called; I asked Nussbaum to pay the bill; he refused to do it; he wanted a deduction from the bill for the cattle being bruised; I do not know how much he wanted deducted; did not agree on the amount to be deducted at the first interview; I did not make an offer until I had seen Taylor; I can’t tell whether I mentioned Taylor’s name; I saw plaintiff afterwards, and before the defendants paid me; plaintiff never authorized me to make any deduction; I made the deduction myself on my own responsibility, as I wanted to get the money; defendants refused to pay the whole bill, and I deducted $90; I sold the cattle for plaintiff on commission; myself and brother were partners; I never at any time told Nussbaum, or any other person, that plaintiff had authorized me to make any deduction whatever.
    On being cross-examined, the witness further testified: I had made deduction on cattle sold before; I never made any deduction on cattle sold by us for plaintiff; I had done so on my own sales.
    The defendants’ counsel proposed to show that witness had frequently made deductions on bills for cattle, when the cattle had, after slaughtering, been found to be bruised, for the purpose of showing that it was the usage of persons collecting bills for cattle to make deductions.
    The jolaintiff objected to the testimony, and the court sustained the objection, to which the counsel for the defendants excepted.
    The testimony was here closed, and the cause submitted.
    The counsel for the plaintiff requested the court to charge the jury, that the evidence did not show a legal authority in the witness .Belden, as agent for the plaintiff, to accept a less sum than the contract price for the cattle, and that notwithstanding the payment of such sum, and the receipt of the same by said Belden, in full payment of the contract price, the plaintiff was entitled to a verdict.
    The court hereupon charged the jury that the evidence-produced was sufficient to show a legal authority from the plaintiff to Belden, to accept the sum paid in full of such contract price, and the jury found the following facts, subject to the opinion of the court at general term, upon the question of the plaintiff’s right to recover, notwithstanding such payment and receipt.
    The counsel for the plaintiff excepted to that portion of the charge of the court, wherein the court charged that the evidence produced was sufficient to show a legal authority from the plaintiff to Belden, to accept the sum paid in full of the contract price, and desired the court to note such exception.
    The jury thereupon found—.
    First, That after the sale and delivery of the cattle, defendants paid to "William H. Belden the sum of $911, which sum the said Belden agreed to accept in full payment of the said cattle, by reason of the same having been found bruised when slaughtered.
    Second, That said Belden was legally authorized by the plaintiff to accept such sum in full payment of the contract price of 'the cattle.
    The jury hereupon, by direction of the court, and with the consent of the parties, rendered a verdict in favor of the plaintiff, for the amount claimed by the complaint, with interest, $100.96, subject to the opinion of the court at general term, on the questions of law arising in the case, with liberty to the court to dismiss the complaint.
    
      J. B. Scoles, for plaintiff,
    moved for judgment on the verdict, and insisted on the following points.
    I. The question, whether the evidence produced was sufficient to show a legal authority from the plaintiff to Belden, to accept the sum paid in full of the contract price, was a question of fact, and ought to have been submitted to the jury.
    II. The plaintiff never gave. Belden authority to accept the sum paid, in full of the contract price. He himself says, “Plaintiff never authorized me to make any deduction. I made the deduction myself, on my own responsibility, as I wanted to get the money. Defendants refused to pay the whole bill, and I deducted $90.”
    III. There was no contract or agreement between plaintiff and the defendants, that Belden should make this deduction from the bill. Even if the testimony of Max Doctor be credible, the reasonable and legal interpretation of the conversation between plaintiff and defendants is, that he, the plaintiff, would be satisfied with whatever Belden should do in the shape of a deduction, provided the defendants had a legal right to any deduction from the contract price. The sale was made by Belden, who alone knew the terms and conditions of sale. The alleged conversation between the defendants and Belden upon this subject, contained in Doctor’s testimony, is in harmony with this view—if there was a contract or agreement between plaintiff and defendants, that Belden should make any deduction he pleased, whether the defendants had a legal right to it or not, it would be, without consideration, a nud/wm pactmm, and of no binding obligation.
    IV. Had Belden been legally authorized by the plaintiff to accept a smaller sum than the contract price, in full payment of the contract price of the 'cattle, his acceptance of such smaller sum does not deprive the plaintiff of a right of action for the balance. . The payment of part is no satisfaction of the whole. There was no legal consideration for the deduction. The defendants had no legal claim to any deduction from the contract price. The doctrine of ca/oeat em/pior applied to the bruised condition of the cattle. There was no warranty of soundness. There is no pretence of fraud. The payment made was not a good accord and satisfaction. (Johnson v. Brannan, 5 Johns. 269; Seymour v. Minturn, 17 Johns. 169.) That the doctrine of caveat emptor applies to the sale of the cattle, see Hilliard on the Law of Sales, 224; Fitzherbert’s N. B., 94 c.
    
      J. Cochrane, for defendants,
    claimed that judgment should be entered in their favor, and argued as follows.
    I. The answer alleges, that in consideration of the damage suffered by the defendants, on account of the cattle having been bruised, the plaintiff agreed to settle, and did settle his claim at a less sum than he originally demanded. The evidence proves the allegation. This is no answer of an accord and satisfaction, but of an agreement between the parties to settle, and a settlement.
    II. The insufficiency of a smaller sum to cancel a greater, pleaded in form, of an accord and satisfaction, proceeds on the ground of the palpable inadequacy of the less to the greater sum. (Walkman v. Ingleby & Stoke, 5 John. R. 386, 391, and cases cited.) If, in addition, however, to the less sum paid, any other consideration is shown from which the court can see that a benefit could be derived to the plaintiff’s satisfaction, that makes the payment of the smaller sum good as an accord and satisfaction. As, if the less sum be paid at a different place, or before the day agreed (Walkman, v. Ingleby, supra; Fitch v. Sutton, 5 East’s R. 230). »If the amount is disputed, the acceptance of a sum smaller than the demand, is a good accord and satisfaction (Palmerton v. Huxford, 4 Denio, 166). The answer and the evidence in this case both show that the amount was disputed, and that in consideration of the cattle having been bruised, $89 were thrown off in settlement.
   Br the Court.

We are all of opinion that upon the facts found by the jury, the defendants are entitled to judgment.

Admitting that the cattle were not sold under a warranty, express or implied, as to their soundness, and that the defendants had, therefore, no legal right to claim a deduction from the stipulated price; the deduction was, however, just and equitable in itself, and its equity is a sufficient consideration for its allowance. It is sufficient to exempt the case from the general rule, that the payment of a less sum than the amount of the debt is not a good accord and satisfaction.

But it is not alone upon this ground that we place our decision. We apprehend that it is settled law, that when the claim of a creditor is disputed in good faith, and in order to settle the dispute he consents to abate a portion of his demand, the settlement, as a compromise, is valid and binding. Nor will the court inquire in such cases, whether he was legally bound to make the sacrifice. We deem it needless to refer to cases to show that such, is the rule.- It is sufficient to say that it was the ground of the decision of this court in Currie v. Steele, 2 Sand. S. C. R., p. 542. There is no reason here to question the good faith of the defendants. They doubtless believed that they were entitled to the deduction which they claimed.

The only question that remains is, whether the agent, Belden, had authority to make the deduction. It is said that this question ought to have been submitted to the jury. As we read the case, it was submitted to the jury, and their finding, if there was any evidence to support it, is conclusive. The testimony of the witness, Doctor, was sufficient to support it; and supposing him to have been contradicted by Belden, whether he or Belden was to be believed, it was for the jury to determine.

But, in truth, it was not necessary that the question of the agent’s authority should have been submitted to the jury at all. TTis authority resulted from the nature of his agency; he had a general authority to sell and collect the price. The amount to be paid rested, therefore, in his discretion, and he exercised this discretion in making the settlement which he did. The sum paid to him he consented to receive as the full price to which he was entitled.

As the facts in this case have been specially found by the jury, the Code makes it our duty to render such a judgment as the finding warrants (§ 262). The verdict for the plaintiff must, therefore, be set aside, and a verdict and judgment thereon with costs, be entered for the defendants. They ought not, by amere dismissal of the complaint, to be subjected to the risk of a second'action.  