
    Edward C. Amer et al., Appellants, v. John H. Folk et al., Respondents.
    (Supreme Court, Appellate Term,
    July, 1899.)
    Accord and satisfaction — Assent — Consideration.
    After vendors had shipped 341 bundles of kid skins, a dispute arose between them and the vendees as to 82 of the bundles, and the vendors refused to take the latter back when they were returned to them by the vendees. The vendees then sent a check for 259 of the bundles and in their accompanying statement credited themselves with “ merchandise returned”, being the purchase price of the rejected 82 bundles. The vendors used the check and thereafter the parties again attempted to settle their dispute.
    Held, that no valid accord and satisfaction arose from the use of the check, as the vendors had not thereby assented to a new agreement.
    That they had received no consideration therefor, as they had merely - been paid the value of those bundles which were not in dispute.
    Amer v. Folk, 27 Misc. Rep. 634, reversed.
    Appeal from a determination of the General Term of the City Court of the city of Hew York, affirming a judgment of the Trial Term dismissing the complaint.
    Blumenstiel & Hirsch, for appellants.
    Hastings & Gleason (George S. Hastings, of counsel), for respondents.
   Leventritt, J.

The question presented by the record in this ■case is whether the evidence established an accord and satisfaction justifying a dismissal of the complaint.

The plaintiffs were manufacturers of glazed Md skins in the city of Philadelphia; the defendants were engaged as dealers in leather in the city of Hew York.

On October 21, 1896, the defendants purchased 682 dozen of combination kid skins. The plaintiffs’ version of the transaction, which, in view of the dismissal of the complaint, must be accepted ns true, is briefly as follows.

After an examination of the goods by Charles Fritz, one of the defendants, he made an offer of thirteen cents a foot, the asking price being fourteen cents. The offer was accepted on condition that the defendants would “ take the lot and chance it.” On these terms ■ 341 bundles, containing two dozen skins each, were shipped to the defendants on October 21, 1896, and a bill in the sum of $4,263.94 was sent on the same day. The defendants at first claimed that the shipment was ten dozen short. Subsequently they found the missing goods, but then, claiming defects in some of the skins, wrote this letter:

October 28th, 1896.
“Messrs. Wm. Amer & Co.:
“ Gentlemen.— W e had to go over the entire lot of stock again to find the 10 dozen which were short and we found you were right, but on examination of the entire lot of stock we find a vast difference, the writer examined every bdle. himself and found 259 bdles which were up to sample, and 82 bdls. which were not, so we return you this day via Mew Line, those hdles. as enclosed Memo, which are not.
“ Kindly credit same to our account and oblige,
“ Tours respy,
“ Folk & Feitz.”

Added to this letter was a detailed statement of the measurement of the eightv-two bundles, showing that they contained 7,987f feet, and a calculation at thirteen cents which amounted to $1,038.41. The plaintiffs replied:

“Philadelphia, October 29th, 1896.
“ Messrs. Folk & Fritz,
“ 47 Warren Street, Mew York, M. Y.:
“ Gentlemen.— Your letter received with regard to stock sold. In the first place, it was a straight sale, you looked through all the goods, and bought them with the remark ‘ I will take the lot and chance it.’ The stock was the same you looked at and the lot you refused we still have on hand. Mow as this was a straight sale, we refuse to receive the goods. Your next door neighbor wanted the goods and claimed them, even threatening us with a law-suit.
“ Yours truly,
“ Wm. Ameb & Co.”

The returned goods arrived in Philadelphia. They were offered to the plaintiffs, who refused to receive them. Thereupon they were stored by the carrier and were still in the latter’s possession at the time of trial. On ¡November 13, 1896, after the return of the rejected goods, the defendants remitted, for the skins retained, by a check inclosed in the following letter:

“ Messrs. Wm. Amer & Co.:
“ Enclosed find Check for $3,080 38/100 in settlement of Bill Oct. 21st, less Mdse. Eetd. and discount.
“ Please acknowledge receipt and oblige,
“ Yours respectfully,
“ Folk & Fritz.
“ 4263.94
“ 1038.41 Mdse Eetd Oc. 28th.
“ 3225.53
“ 145.15 4¿^
“ $3080.38.”

The accompanying check read:

Mo. 12023
Mew York, November 13, 1896.
“ The Mational Park Bank.
“ Pay to the order of Wm. Amer & Co., Three thousand and Eighty 38/100 Dollars.
“$3080 38/100.
Folk & Fritz.”

The plaintiffs, without acknowledging receipt of the check or letter, indorsed the check and cashed it through their bank. Shortly thereafter the defendant Fritz called upon the plaintiffs at their store in Philadelphia, apparently in reference to the rejected goods, and at an interview then had, Edward O. Amer, one of the plaintiffs, insisted that the defendants had no right to return any of the skins. Fritz, it appears, did not demur. A few days later the plaintiffs wrote, demanding payment for the eighty-two bundles at the stipulated price of thirteen cents per foot. Upon the defendants’ failure to comply, this action was instituted. On the foregoing' facts the Trial and General Terms of the City Court held that a valid accord and satisfaction was established. This was error. The record fails to- show either the assent to, or the consideration for, the new agreement which the defendants would invoke to defeat the plaintiffs’ claim. An accord and satisfaction, to be binding, requires an executed new contract founded on a new consideration. Massoiy v. Tomlinson, 148 N. Y. 326. The defendants apparently contend that the acceptance and retention by the plaintiffs of the check of November thirteenth, after a dispute had arisen concerning the eighty-two bundles of defective skins, consummated such a new contract, for which a compromise was the consideration. The contention is unsound. There was no dispute as to the amount due. No question was or is raised as to the agreed price of the goods retained or of the goods returned. There was no difference between the parties either as to quantity or price. The number of feet of combination kid skins accepted was calculated at the stipulated thirteen cents a foot, the number of feet rejected was similarly calculated at thirteen cents per foot and the aggregate of the several sums exactly equalled the amount of the original bill. The dispute, if any existed between the parties, concerned the quality of some of the skins and the right to reject them. It is unnecessary to consider here whether the defendants could, as a matter of law, return part of the skins while accepting the remainder. The defendants returned some of the goods; the plaintiffs refused to receive them; then the defendants, in order to avail themselves of the discount allowed for payment within thirty days, remitted the exact undisputed value of the goods retained, particularly specifying in their letter accompanying the check that the skins they had sought to return were not included in the remittance. After the check had been received, the parties had an interview at which they attempted to adjust their differences respecting the skins refused; this failed, as the plaintiffs insisted that the defendants had taken their chances on the quality of the lot. The alleged dispute thus continued after receipt and use of the check, and we think it would require a construction very far removed from the evident intention of the parties to hold that the words “ less Mdse Eetd ” fastened a condition on the acceptance of the check to the effect that the plaintiffs waived further claims. The element of assent to the alleged new agreement is entirely wanting and cannot be implied as a matter of law by the mere retention of the check. Eames Vacuum Brake Co. v. Prosser, 157 N. Y. 289; Kruger v. Geer, 26 Misc. Rep. 772; McKay v. Myers, 168 Mass. 312. “ Ordinarily, the retention of a check inclosed in a letter which refers to the amount as the balance due on accounts between the parties, will not be held to be an accord and satisfaction so as to bar an action for the balance due. 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 return of the check.” Eames Vacuum Brake Co. v. Prosser, supra.

In addition to the absence of assent, we think there was an absence of consideration. Even if we accepted as true the defendants’ contention that the check was regarded by them as fully paying the debt due for the goods delivered and that they intended, by the use of the-words “less Mdse Retd” to indicate' that they would recognize no further indebtedness, and even had the plaintiffs assented, yet the alleged new agreement was without benefit or possibility of benefit to the creditors, that is the plaintiffs, and therefore was nudum pactum and void. Payment for the goods delivered, as to which the liability was undisputed and liquidated, cannot be invoked as a consideration for an agreement to relieve the defendants of the disputed liability. In the very recent case of Chicago, M. & St. P. R. Co. v. Clark, 92 Fed. Rep. 968, Lacombe, J., after a most exhaustive review of the authorities bearing on the necessity of a consideration to support an accord, sums up the rule thus: “ Páyment by a debtor of a liquidated amount, presently due, and to which he had no defense that can be urged in good faith or with color of right, is not, by itself, a sufficient consideration to sustain a release by the creditor of other claims against the debtor.” At p. 976. So far from having been in a position to litigate the claim invoked as the basis of the accord, the defendants conceded its amount and promptly and voluntarily paid it to avail themselves of the discount. To that part of the claim they at no time asserted any objection or defense. As the evidence now stands, the words “ less Mdse Retd ” indicate merely the quantity being paid for, leaving for subsequent settlement the question of the right to return the eighty-two bundles of skins. On a new trial additional circumstances may be developed that may justify a jury in finding facts that will establish a valid accord, but in the present state of the record we must hold that there is, in this regard, a failure of proof.

The judgment must be reversed.

Freedman, P. J., and MaoLean, J., concur.

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