
    French vs. Marquand.
    Where an order payable in goods is accepted by the drawee, he has a right to charge for the goods the same prices which he is in the habit of charging to good customers in their ordinary course of dealing.
    The fact that the drawee after some hesitation offered to sell an article at an under price to the bearer of such an order, supposing that he was going to pay cash down, affords no test of the fair market value, or of the price to be charged when the article is given in payment of an order payable in goods of the kind.
    Motion to set aside report of referee. On a settlement of accounts-2d May, 1842, between the parties, the plaintiff gave to defendant the following receipt:
    
      “ Received of F. Marquand his orders on Messrs. Tompkins & Black, for one hundred dollars in goods; and on Mr. Frask for one pair of boots, being in full of all demands for ■ drawing and services for himself and Southport Church.”
    The two orders as follows:
    
      To Messrs. Thompkins & Black;
    Pay to the order of Mr. French the value of $100 in watch jewelry or household furnishing articles (excepting silver ware.) F. Maequand.
    N. Y., 2d May, 1842.
    Let the bearer Mr. French have one pair of boots, and charge them to me. F. Maequand.
    To Mr. Feask. 2d May 1842.
    The first order was presented and accepted, but the parties differed about the price of the articles. It was proved, however, that the drawees offered to pay the order by the delivery of articles at the prices ordinarily charged to good customers. The holder insisted upon receiving a particular watch, at some $ 15 less than the customary price, because the drawees had offered to take $ 100 cash down for the same, after some hesitation, when they supposed the bearer was going to pay cash for it.
    The case as made in respect to the second order was still stronger for the defendant, and was given up by the counsel for plaintiff. The referee reported in favor of defendant.
   By the Court,

Nelson, Ch. J.

The question in the case is, whether the order given to the plaintiff was accepted by the drawees, and payment tendered thereon in pursuance of its terms and legal import.

It was fairly a question of fact upon the evidence, and I think, rightly decided by the referee.

The drawees had a right to turn out the goods at the customary or market prices, such prices as they were in the habit of selling the same article for to good customers in their ordinary course of dealing.

The fact of the dealers occasionally selling, or offering to sell an article under price for cash down, when straightened for money, affords no test of the fair market value, or of the price to be charged when turned over in satisfaction of an order payable in goods of the kind.

Motion to set aside report denied.  