
    Gabriel Forest et al., Appellants, v. Abraham Davis et al., Respondents.
    (City Court of New York, General Term,
    March, 1897.)
    1. Sale — Partnership.
    Where the answer to an action for goods sold and delivered denies any knowledge or information sufficient to form a belief as to the allegations
    of plaintiffs’ partnership, admits a purchase of the goods from plaintiffs and sets up a defense of payment, the plaintiffs need not prove their copartnership, as that fact is immaterial under the admission as to the purchase.
    2. Payment — Composition.
    The giving of the debtor’s own checks for the amount of a composition does not amount to a payment of the debt unless they are paid, and upon a failure to meet any of them the creditor becomes reinvested with the original debt and entitled to sue thereon.
    Appeal from a judgment, entered upon a verdict directed by the court in favor of the defendants.
    Arthur A. Michell, for appellants.
    Max D. Steuer, for respondents.
   O’Dwyer, J.

The complaint alleges that on the 14th day of February, the 6 th, 7th, 28th and 30 th days of March, the 8 th and 19th days of April, and the 21st day of May, 1895, plaintiffs sold and delivered to the defendants at their special instance and request certain goods, wares and merchandise which were reasonably and fairly worth the sum of $216.88, which said sum defendants promised and agreed to pay therefor; that the defendants have paid on account of said indebtedness $89.78, leaving a balance due and owing from defendants to plaintiffs of $126.50, for which sum judgment is demanded.

The only denial in the answer is “ of any knowledge or information sufficient to form a belief as to the allegations of plaintiffs’ copartnership ” alleged in- the complaint.

In the second paragraph of defendants’ answer payment is pleaded as follows: “They admit that they purchased goods from the plaintiffs as in said complaint set forth, but on the 17th day of July, 1895, they paid to the plaintiffs the sum of $125, in full of their indebtedness to the plaintiffs and in full of all demands of the plaintiffs against the defendants up to and including that day.”

On thesé pleadings the cause of action set forth in the complaint was admitted and the burden -was on the defendants to sustain the defense of payment. On the trial plaintiffs called a witness to prove the copartnership of the plaintiffs (a proceeding wholly unnecessary, for the-reason that upon the admission that defendants purchased goods from the plaintiffs as in said complaint set forth, it became immaterial whether plaintiffs were copartners or not.) On cross-examination of this witness a receipt signed by him with authority was put in evidence and is as follows: “N. Y. July 17th, 1895, Received of A. Davis & Company, One hundred, and Twenty-five ($125.00?) Dollars in settlement of account in full to date. Received payment, Gr. Forest & Oo., per J. Maitrail.” It appears from the evidence that the plaintiffs at defendants’ request agreed to receive for their debt sixty cents on the dollar; defendants to pay this sum by three checks payable in the future and the receipt was given upon delivery of the checks to the plaintiffs. Two of these checks have been paid,- and one for $37.50 protested and remains unpaid. This check was produced on the trial, but not returned to the' defendants, and it is now insisted that the failure to return this check or tender its return on the trial is a bar to any recovery by the plaintiffs.

Assuming a binding composition to have been made between these parties, we are of the opinion that upon defendants’ default of any of the conditions thereof the plaintiffs had a right to rescind the same and become immediately reinvested with the original debt, and although they were bound to return the check in question on or before the trial, their failure to do so after the admitted default of the defendants to make the payments called for by the composition did not defeat their right to recover upon the original debt. At most the defendants could ask for a credit in the amount of the check.

We agree with the counsel for the respondents that the plaintiffs, having requested the court to direct a verdict and not having asked leave to go to the jury, cannot now be heard to complain of the court’s determination of the facts if there is any evidence to support that determination.

The verdict directed will be. sustained the same as a finding of a jury if there is evidence to justify it. The defense is payment. This is an affirmative defense and the burden is upon the defendants to prove the same by a fair preponderance of evidence.

It is admitted that prior to July 17, 1895, the .defendants were indebted to the plaintiffs in the sum of $216.88 for goods sold and delivered. That on or about that date plaintiffs agreed to accept 60 per cent, of the debt in payment, to be made by the defendants delivering three checks for different amounts and payable at different times thereafter. That defendants did deliver three of their own checks, together amounting to 60 per cent, of the plaintiffs’ debt, to the plaintiffs and have paid two of them, and the remaining one has been protested and remains unpaid, and the receipt in evidence was given upon the delivery of those checks. There is no consideration shown for a discharge of all of defendants’ indebtedness to the plaintiffs. Mechanics’ Bank v. Hazard, 13 Johns. 353; Dederick v. Leman, 9 Johns. 333.

The giving of defendants’ own check for a less sum than that due does not amount to a payment in full and the receipt in full does not amount to a release from the balance of the debt. The plaintiffs were entitled to the full amount of their debt, and the defendants were bound to pay it. The fact that instead of paying it at once the defendants were permitted to give three checks for less than the debt payable in the futriré does not operate' to discharge the debtors from their liability for the whole debt.

The judgment appealed from should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Van Wyck, Ch. J., concurs.

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