
    Willson Brothers Lumber Company, Respondent, v. Gardner Wood Company of New York, Appellant.
    (Supreme Court, Appellate Term, First Department,
    January, 1916.)
    Accord and satisfaction — what constitutes an — action to recover balance due.
    Where, in an action to recover the balance due on the purchase price of a car-load of what was known in the common business of the parties as “ red heart ” lumber, there were no representations made by plaintiff and no express warranty, and after a dispute between the parties as to the amount due because of admitted defects in the lumber defendant, the day after the receipt of a letter from plaintiff requesting payment, sent it a cheek by mail for the amount due as claimed by defendant, the retention of the check and its almost Immediate payment constitute an accord and satisfaction, though plaintiff in its letter acknowledging the receipt of the check stated that there still remained a balance due of a certain sum and asked that it be attended to at defendant’s earliest convenience.
    Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, third district, in favor of the plaintiff and against the defendant.
    Williams, Folsom & Strouse (Arthur D. Fisher, of counsel), for appellant.
    Conway, Williams & Kelly (F. Ferris Hewitt, of counsel), for respondent.
   Philbin, J.

The plaintiff brought suit to recover the balance due of the purchase price of certain merchandise sold to defendant under a contract in writing. The only defense on the trial and the only question raised on appeal rests upon the plea of accord and satisfaction. If the claim of the plaintiff can be considered as being a liquidated one, such a plea cannot be sustained. The facts pertinent to the point thus to be determined are as follows: The subject of the sale was a car-load of what was known in the common business of the parties as red heart lumber. It was well known in the trade that in a substantial quantity of said lumber there would be parts more or less defective and unfit for use and the inference to be drawn, therefore, is that a contract to sell would be regarded as having been sufficiently and substantially performed by the seller .where such imperfection did not exceed the trade custom or average. In the present instance there were no representations made by the plaintiff as seller and no express warranty. The defendant as a buyer simply ordered 19,000 feet of red heart lumber to be delivered f. o. b. New York at seventeen, dollars per 1,000 cash less two per cent ten days after arrival. The shipment arrived in January, 1914, and several days thereafter the defendant began sawing the lumber. On the 15th of January, 1914, the defendant wrote to the plaintiff a letter in which it said that the shipment was nothing more or less than a lot of mill cull, was entirely unsatisfactory and that a large percentage of it was absolutely unfit for use. The plaintiff replied to said letter, merely making the observation that there was considerable percentage that develops after re-sawing that would look pretty' hard, referring apparently to general conditions and not specifically to the lumber in question. The plaintiff further said that it could not consistently entertain a complaint on this shipment. A further exchange of letters took place until April 22, 1914, when the plaintiff wrote to the defendant and stated that it would have no objection whatever to making a reasonable reduction, that is to say one dollar per 1,000 feet, which it believed would fully cover any discrepancy in the grade, provided there was a discrepancy, but to entertain the proposition of allowing seventy dollars reduction on such shipment was entirely out of the question. The above letter was replied to by the defendant insisting upon the greater allowance. On the 28th of April, 1914, the plaintiff wrote asking, payment and on the day following defendant wrote the letter and sent the check which it claims supports its plea of accord and satisfaction. The letter reads as follows:

“As per your request of the 28th inst.., we are sending you our settlement of D. & H. car No. 21301 as follows:
“Invoice......................$327 15
“ Allowance............ $75 00
“ Freight.............. 133 53
- 208 53
“ Check encl____'............ $118 62 ”

The omission to say that the check was enclosed in full settlement was immaterial, as the intention could not be in doubt in view of the controversy which had preceded the sending of the letter. The check of the defendant referred to bears the stamp on the reverse side of a bank in Pittsburg, where the plaintiff had its offices, apparently showing payment on 1st of May, 1914.

On the 11th of May, 1914, the plaintiff wrote acknowledging receipt of said letter and check and stated that there still remained a balance due of seventy-five dollars, which it asked be attended to at defendant’s earliest convenience. The letter further refers to the shipment as the one “ on which complaint was made and on which we agreed to allow yon $1 per M. and which proposition yon have as yet failed to accept. Kindly advise ns immediately what we may expect in the way of settlement. ’ ’ The retention of the check and its almost immediate payment, together with the above letter of the plaintiff, fail to sustain the contention of the plaintiff that there was not accord and satisfaction. Within the understanding of the parties the plaintiff was entitled to the purchase price unless the goods delivered were not in accordance with the contract, including the implied warranty therein, or the defendant had waived full performance by acceptance. The defendant’s letter, written almost, immediately after the arrival of the shipment, sufficiently shows that there was not such an acceptance so as to eliminate the question of the full performance by the plaintiff and the latter’s attention' was promptly called to the alleged omission to comply with the contract. The attitude taken by the plaintiff in the above correspondence indicates that it did not regard its part of the contract as performed according to the terms. It is not essential that the dispute should be one based upon grounds sufficient, in law, but it may be simply an honest and reasonable difference of opinion relating to the performance of the contract. An arbitrary or fanciful attitude taken by one of the parties as a mere subterfuge to evade a duty and with which the other side naturally disagrees would not be regarded as such a dispute as is contemplated by law. It can hardly be doubted that the difference that arose between the parties here as to the amount due because of admitted defects in the shipment constitutes a rea- • sonable and genuine dispute and that the payment made related-to. the subject, of the controversy. In that respect it is materially unlike the case of Windmuller v. Goodyear Tire & Rubber Co., 123 App. Div. 424, where the dispute was in relation tó the grade of merchandise which the defendant claimed it was entitled to under an express warranty. The court held that the only question between the parties was as to whether or not there had been such a warranty for the alleged breach of which the plaintiff claimed damages. There was no dispute as to the amount due under the contract itself, as distinguished from the liability under the express warranty. The court, therefore, held that the check which was accepted represented an amount which was due in any event, being a balance indisputably owing upon the-contract. Here it is clear from the proof that the payment so made by the defendant was intended to be made in full satisfaction of the claim of the plaintiff and that such intention was so manifest as to compel the inference that the check was accepted for that purpose. A proper case of accord and satisfaction was, therefore, made out.

Guy and Page, JJ., concur.

Judgment reversed, with thirty dollars costs, and complaint dismissed with costs to the appellant."  