
    Theresa L. de Villiers Baccaria, Appellant, v. George M. Landers, Respondent.
    (Supreme Court, Appellate Term, First Department,
    March, 1914.)
    Payment—fixing time of — presumption of—■ action to recover balance alleged to be due on account for goods sold and delivered — contracts — accord and satisfaction — judgments.
    Where a contract for the sale and delivery of goods fixes no time for payment, the law presumes that payment is to be made on delivery.
    Where, on the trial of an action to recover a balance alleged to be due on an account for goods sold and delivered, it appears that they were ordered by defendant’s wife and were originally charged to her, that they were necessaries according to the circumstances and station in life of defendant and that he and his wife were living together during the period the goods were furnished, a judgment for defendant dismissing the complaint, on the ground that there being no express agreement as to payment for the goods payment was at the customer’s convenience, will be reversed, the presumption being that payment was to be made on delivery of the goods. The mere fact that defendant’s wife ordered the goods and that plaintiff sent a bill therefor to her did not relieve defendant from liability.
    Where defendant paid part of the account by his check with a statement thereon that the payment was “ in full of all demands to date,” there was no accord and satisfaction, the amount due not being in dispute.
    The facts being undisputed and defendant having failed to establish any defense, judgment dismissing the complaint will be reversed, with costs, and judgment awarded to plaintiff for the full amount claimed, with interest and costs.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, eighth district, dismissing the plaintiff’s complaint upon the merits.
    Louis J. Gold, for appellant.
    Clarence K. McGuire, for respondent.
   Seabury, J.

This action was brought to recover $223.40, an alleged balance of an account claimed to be due for goods sold and delivered. It appears that the goods sold and delivered were ordered by the defendant’s wife, that they were originally charged to the defendant’s wife, that they were necessaries, according to the circumstances and station in life of the defendant, and that the defendant and his wife were living together during the period the goods were sold and delivered. The goods were shown to be of the reasonable value of $1,112, of which amount the defendant paid $889.60, giving his check with a statement thereon that the payment was in full of all demands to date.” The court below gave judgment for the defendant on the ground that there was no express agreement as to when the goods sold should be paid for, and, therefore, they were to be paid for at the customer’s convenience.

The ground upon which the court below rendered judgment for the defendant was incorrect. No time of payment being fixed in the contract for payment of the goods sold, the law presumes that payment was to be made upon delivery. Mount v. Lyon, 49 N. Y. 552; 35 Cyc. 264.

The mere fact that the defendant’s wife ordered the goods and that the plaintiff sent a bill for the goods to the defendant’s wife did not relieve the defendant from liability. The goods sold were necessaries and in" the absence of any contract on the part of the wife that she alone should be liable for them, and in the absence of proof that the husband had already supplied his wife with .articles of the same character as those purchased, or had notified the tradesman not to give credit to her, the presumption is that she contracted as agent for her husband, and that he is liable for the debt. Speckman v. Foote, 138 N. Y. Supp. 380; Wanamaker v. Weaver, 176 N. Y. 75, 83; Rosenfeld v. Peck, 149 App. Div. 663.

The claims of the respondent, that because the last payment was made in full of all demands to date ” there was an accord and satisfaction, is not tenable in view of the fact that the amount of the debt was not the subject of dispute. While the rule that where a liquidated sum is due the payment of part only, although accepted in satisfaction, is not, for want of consideration, a discharge of the entire indebtedness, is not looked upon with favor and is confined strictly to cases falling within it (Jackson v. Volkening, 81 App. Div. 36; affd., 178 N. Y. 562), yet where the case does come strictly within the rule that rule must be applied.

In Eames Vacuum Brake Co. v. Prosser, 157 N. Y. 289, the court said: 1 ‘ It is only in cases where a- dispute has arisen between the parties as to the amount due and a check is tendered on one side in full satisfaction of the matter in controversy that the other party will be deemed to have acquiesced in the amount offered by an acceptance and a retention of a check. ’ ’

In the present case there was no dispute as to the amount due. When the plaintiff demanded payment the defendant, instead of disputing the claim, wrote the plaintiff as follows: If you are badly in need of money you will probably be willing to accept a discount of say 20% and if this will help you out and you advise me immediately on receipt of this letter to that effect, I will see that you have a check for your account in full less 20% * * * otherwise I regret that your account must take its usual course.”

The present case, therefore, falls clearly within the rule declared in Jaffray v. Davis, 124 N. Y. 164, where it was said: That a creditor cannot bind himself by a simple agreement to accept a smaller sum in lieu of an ascertained debt of larger amount, such an agreement being nudum pactum. But if there be any benefit or even any legal possibility of benefit to the creditor thrown in, that additional weight will turn the scale and render the consideration sufficient to support the agreement.

The agreement of the plaintiff to accept a part of the debt ‘ ‘ in full of all demands to date ’ ’ was without consideration and-void.

The facts of the case being undisputed, and the defendant having failed to establish any defense to the plaintiff’s claim, it follows that the judgment should he reversed with costs to the appellant, and the judgment should he awarded to the plaintiff for $222.40 with interest, together with the costs in the court below.

Guy and Delany, JJ., concur.

Judgment reversed, with costs to appellant, and judgment awarded to plaintiff, together with costs in court below.  