
    Alberto H. Caffee, Respondent, v. A. R. Sax Lumber Company, Appellant.
    Second Department,
    July 29, 1910.
    Sale—evidence—proof admissible under general denial — failure to perform—allegation of full performance—accord and satisfaction — when account unliquidated.
    Where in an action for goods sold and delivered, the complaint alleges full performance by the seller, the buyer under a general denial may give evidence on any matter which it is necessary for the seller to prove to establish his cause of action. Thus he may prove that the goods were not of the kind and character or quantity required by the contract and that they were not delivered in conformity therewith.
    Where the seller has alleged full performance he cannot against objection show partial performance and matters excusing full performance.
    Where the buyer of goods deducted freight charges paid on five cars but the seller in drawing on the buyer gave allowance for three cars only, the account was unliquidated so as to allow the defense of accord and satisfaction.
    Appeal by the defendant, the A. R. Sax Lumber Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of November, 1909, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 14th day of December, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Selig Edelman [George P. Heimberger with him on the brief], for the appellant.
    
      Charles H. Fuller, for the respondent.
   Rich, J.:

The plaintiff is the assignee of the Marbury Lumber Company and has recovered in this action an alleged balance due from the defendant for lumber sold and delivered to it by his assignor. The complaint alleged that the defendant was a domestic corporation and that on stated dates said Marbury Lumber Company sold and delivered to it, at its request, five carloads of lumber of the agreed on value of $687.09 ; that $144.49 had been paid thereon, and the balance was due and unpaid to plaintiff as assignee. The answer admits that the defendant is a domestic corporation and denies each and every other allegation in the complaint contained. . It then alleges, as an affirmative defense, an accord and satisfaction based upon the payment of said sum of $144.49, and demands judgment dismissing the complaint. It is thus apparent that the plaintiff bases his cause of action upon full performance of the contract of his "assignor with the defendant, which is put in issue by the general denial. Under a general denial the defendant had the right to give evidence upon any subject which it was necessary for the plaintiff to prove to establish his alleged cause of action. The contract referred to was, upon the part of the defendant, a written order for lumber of stated kinds, quality and dimensions, and was followed by written communications between the two companies as to the time of delivery, if the order was accepted. Upon the trial the plaintiff was permitted to prove, after it appeared that there had been an extraordinary delay in shipment, over defendant’s objection and exception, reasons tending to excuse performance of the contract as to the time of delivery by the earlier shipment of the lumber, such evidence being at variance with the allegations of the complaint which practically alleged full performance and averred no excuse or justification for non-performance. The defendant sought to prove that the plaintiff’s assignor did not perform its contract in two essential particulars: First, that the deliveries of the lumber were not made at the times agreed upon, because of which it had the authority and right to, and did, reject and refuse to accept a portion of the • .lumber shipped; and second, that the lumber delivered -and rejected by the plaintiff was not of the character ordered by the defendant. Upon plaintiff’s objection that such evidence was not admissible' under the pleadings, the evidence was excluded and the defendant excepted. These exceptions present reversible error. The plaintiff having alleged full performance,. could not be permitted, over defendant’s objection, to show partial performance and matters excusing full performance, and in an action of this character, where full performance is averred, the defendant under its general denial was entitled to show that the lumber was not of the kind, character or quality required' by the contract, and was not delivered in conformity with the' contract.

It is claimed that the documentary evidence establishes plaintiff’s cause of action and that the errors were harmless. I dp not think so. ' The documentary evidence does not show full performance by the plaintiff’s assignor or the character of the lumber actually delivered. The respondent asserts that the bills of lading prove the fact that the lumber ordered was shipped to and received by the defendant. I am unable to find any bills of lading in the case. Further, I am not sure that the evidence does not establish the defense of an- accord and satisfaction. "That matters of difference existed between the parties' is shown by their correspondence.. There was continuous objection and complaint by the defendant to the delay in shipment, and notice that because thereof the defendant .had been compelled to purchase in the open market lumber to take the place of that ordered of the Marbury Lumber Company, and that the defendant had been and was being damaged because of such failure to deliver the lumber as agreed. On July twenty-third, after receiving information of the shipment of July eighteenth (the last shipment), the defendant writes: “.We certainly regret that you have seen fit to handle this order in the manner that you have. You have given us more trouble with this order than we have ever had with an order during our whole experience. If you had in every instance given us correct information regarding same we would have been in a position to have handled it without any loss whatever to you or ourselves, but as-it is we have not only lost considerable money on the order but we' have lost a good customer • besides. We have wired ¡New York this morning asking them whether or not they will accept this car and are awaiting their reply as to what disposition we shall make of' same.” On August thirty-first the defendant wrote the Marbury .Lumber Company: “ Eelative to our order $ 342 which was to'be furnished by you we beg to advise that we have on our dock iú-Savannah the.following pieces which were canceled in the order on account of delay in shipment. * * * We will thank you to make disposition of this stock promptly and oblige,” and on the same day the Marbury Lumber Company wrote the defendant: “We beg to advise that we llave to-day made sight draft on you for $479.57 and have advised the bank to accept in part settlement of this draft freight bills covering car ¡Nos. 9659 and 9060 and 9293 our shipments of May 31st and June 19. Kindly honor draft on presentation.” On September fifth the Marbury Lumber Company wrote: “ Your favor of August 31st received. We beg to advise that this material was sold you, and we have, therefore, nothing to do with it. According to our books, the 8x10, 10x10, 10x14 and 10x16 were shipped you June 19th, and the balance of the material named by yon July 4th. Therefore, to write us under date of August 31st that on account of the delay in shipment this material is to be subject to our order appears to us to be as unreasonable a proceeding as we have ever heard of, much less experienced. We made draft on yon a few days ago for the amount of your account, as it is now ' all past dire, and in the event the said draft is not honored, we shall put your account in the hands of our Attorney for collection.” To this letter the defendant, on September sixth, replied : “We to-day returned your draft for $479.57 and in explanation thereof beg to advise that we are due you only $144.49 as per statement of account attached. On account of yoür failure to promptly deliver our order jf 342 we were compelled to buy 15602 feet out of stock in ¡New York City. This amounted to $752.91, the difference in cost being $188.33, if the order had been furnished complete by you in time to be used by the contractors. We will be glad to honor your draft for $144.49, arid will also thank you to furnish us disposition promptly of the stock which we are holding on the Savannah dock.” The statement inclosed is as follows s

“ Savannah, Ga., Aug. 31s¿, 1906.
“ Marbury Lumber Co.,
“ Marbury, Ala.,
“ In Account with Alfred R. Sax Lumber Co.
1906.
May 28 By sale of refuse C. R. R. yard 9183. $4 52
Aug. 31 By order' jf 342 cars 9293, 10203,
9060, 9659................... 504 08 .
—--$508 60
Debits.
May 28 To Drayage and handling refuse .... $1 50
June 19 To Frt. Order 342 car $ 9659...... 35 97
July 10 To Frt. Order 342 car § 10203..... 53 11
July 10 To Frt. Order 342 car § 9293 &
9060......!.........:......... 55 28 ■
July 31 To Frt. Order 342 car # 9183 ...... 29 92
Aug. 31 To difference in cost buying Order | 342 in Few York a¡c non-delivery as per statement attached..... 188 33
--- 364 Í1
“ Balance to your credit..................... $144 49 ”

Two weeks later the Marbury Lumber Company wrote: “ In reference to your letter of the 6th we have to-day made a sight draft on you for $144.49 and will thank you to honor same on presentation.” This draft the defendant paid. The dispute between the parties related to the amount of- the alleged liability of the defendant based upon the value of all lumber shipped.

These facts in the case at bar are very similar to those .involved in the leading case, on accord and satisfaction, of Lockwood v. Thorne (18 N. Y. 285), and bring it directly within the principles of law. declared in that case. It is contended that the account between the parties was'not an unliquidated' account and that the principles governing the defense of an account stated do not apply. I do not think this contention entitled to weight, and in addition counsel for the respondent concedes that the freight charges deducted in the defendant’s itemized statement of account are correct and were properly deducted. The deduction consisted of freight charges paid on five cars amounting to $174.28. In the letter of plaintiff’s assignor of August 31, 1906 — more than five weeks after the last shipment of lumber—advising defendant of the draft made, freight allowance is given for three cars only, amounting to $91.25. This of itself makes the account unliquidated. (Lestienne v. Ernst, 5 App. Div. 373.)

The judgment and order are reversed and a new trial granted, costs to abide the event.

Hibschbeeo, P. J., Jenks and Cabe, JJ., concurred; Bhee, J., concurred upon the last ground stated in the opinion.

J udgment and order reversed and new trial granted, costs to abide the event.  