
    Robert Maloney, Appellant, v. Lestershire Lumber and Box Company, Respondent.
    Third Department,
    May 4, 1910.
    Accord and satisfaction — failure to prove satisfaction — breach, of contract.
    A plea of accord without satisfaction is no bar to an action.
    An unexecuted agreement of plaintiff's assignor, who was in default in furnishing certain lumber to defendant, cannot operate as a satisfaction of the defendant’s claim for damages for the default, although the defendant promised to waive the default if the agreement were carried out. The defendant may counterclaim his damages in an action for the value of the lumber actually delivered.
    Houghton,. J., dissented.
    Appeal by the plaintiff, Robert Maloney, from a judgment of the County Court of Broome county in favor of the plaintiff, entered in the office of the clerk of said county on the 13th day of February, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the plain tiff Is motion for a new trial made upon the minutes.
    
      Herman D. Walters ■[Archibald Howard of counsel], for the appellant.
    Carver, Deyo & Hitchcock [Israel T. Deyo of counsel], for the respondent. -
   Smith, P. J.:

' The action is brought to recover the purchase price of a carload of lumber shipped by the plaintiff’s assignor to the defendant. The receipt of the lumber is confessed and the price agreed to be paid therefor. A question raised as to the exact amount of lumber delivered is not material to the controversy, as it will hereafter . appear.

The main contention arises over the defendant’s ■ counterclaim for - damages sustained by the failure of the plaintiff’s assignor to fur- ■ nisli two other carloads of lumber according to a prior contract. These two carloads had been ordered early in 1905. While the original contract wás oral, it was afterwards reaffirmed in the letters sufficiently to avoid the' defense of the Statute of Frauds. Upon this contract the plaintiff’s assignor made default by failing to deliver the cars according to its terms. It is claimed in plaintiff’s behalf that this default was waived by the correspondence of December 22 and 26, 1905, between the parties; that the time to deliver the said lumber was extended by stipulation, so as to wipe out any cause of action which the defendant might have had against plaintiff’s assignor prior to that time. Upon this assumption it is claimed that the defendant’s. default in failing to pay for the carload of lumber furnished at Syracuse, and for which this suit is brought, relieved the plaintiff’s assignor from the performance of its contract to deliver the two cars under the original contract as thus-modified: _

At the time of these letters referred to, plaintiff’s assignor was'in default, and was liable to the defendant for the damage that had been suffered by the defendant by reason of that default. If the letters of December twenty-second and twenty-sixth can be deemed to be a waiver of the default, a fair interpretation must construe that waiver as conditional Upon the subsequent execution of the contract and delivery of' the cars in pursuance therewith. It has always been adjudicated that a plea of an accord without satisfaction is no bar to an action for . damages. Under this principle of law' the unexecuted agreement of plaintiff’s assignor to furnish four cars. by his letter of December twenty^second cannot operate as a satisfaction of the defendant’s claim for damage for the default of the plaintiff’s assignor in failing to furnish the. two cars imder the prior contract. Upon the final refusal of the plaintiff’s assignor to furnish those two cars- defendant, therefore, had a cause- of action for damages for the breach of the original contract, which'was properly counterclaimed in this action against the price Of the. car- of lumber actually delivered. We have considered.the other questions raised by the appeal, and find no cause for the reversal of thé.judgment,. and order. The judgment and order should, therefore,- be affirmed, with costs. . '

All concurred, except Houghton, J., dissenting.

Judgment and order affirmed, with.costs.  