
    (88 Hun, 343.)
    EAMES VACUUM BRAKE CO. v. PROSSER et al.
    (Supreme Court, General Term, Fourth Department.
    July 5, 1895.)
    1. Contracts—-Construction.
    An agreement by which plaintiff let defendants have the exclusive sale of a patented article and was to allow defendants 10 per cent commissions on sales made by either party, in consideration of which defendants were to use their best efforts to promote the sale thereof and to pay advertising and canvassing expenses, was rescinded by an agreement which provided that defendants should transfer and assign to plaintiff all orders received and not filled, and hand over orders which might thereafter be received by them; that plaintiff should pay them $10,000 in cash and $25,000 by note,— defendants, as security for the note, to collect outstanding accounts and those for orders not yet filled, and apply collections on the note, and after payment of the note to pay to plaintiff the balance collected, and transfer to him the accounts not collected, “all orders up to this date unexecuted to be filled through [defendants] as sales agents, as before.” Held, that under the latter agreement defendants were not entitled to commissions.
    2. Accord and Satisfaction—Accepting Part Payment.
    Where defendants had money belonging to plaintiff and asserted that a certain amount must be accepted in full, plaintiff by retaining the sums remitted did not forfeit his right to the amount wrongfully retained, he having notified defendants that the remittances would be credited "on account.
    Appeal from judgment on report of referee.
    Action by the Eames Vacuum Brake Company against Thomas Prosser and another. Prom a judgment for plaintiff and an order granting it an additional allowance, defendants appeal.
    Modified.
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    Watson M. Rogers and John Lansing, for appellants.
    Elon R. Brown and A. H. Sawyer, for respondent.
   HARDIN, P. J.

Defendants requested the referee to find that the settlement agreement omitted a provision to the effect that they might retain commissions as agents under the agreement of January, 1877, “by inadvertence and the mutual mistake of the parties thereto.” There was, at most, a conflict in the evidence upon that subject, and there was not such a preponderance of evidence in favor of defendants as to warrant the conclusion that the refusal of the referee to so find was erroneous. Besides, where it appears, as by some of the evidence it does appear, that the contract is as one of the parties intended to make it, the court will not reform it Bartholomew v. Insurance Co., 34 Hun, 265; Paine v. Jones, 75 N. Y. 593. The proof in the case given to secure the reformation does not come up to the degree required by the rule laid down in Bartholomew v. Insurance Co., supra, and cases there cited. Upon the trial, evidence given to support the defendants’ averments that the agreement of May, 1883, did not express the true intent of the parties, was received, and admissible under that part of the answer which sought a reformation. Although some of the evidence was not admissible on the other issues, its admission is not such an error as requires an interference with the report of the referee. The principal issue in the case turned upon the construction to be given to the contract of settlement of May 23,1883. Plaintiff and defendants were parties to litigation, and sought to make an amicable adjustmént of the controversies, and, in the presence of experienced counsel on either side, the negotiations were brought to an end, and the instrument, prepared under the supervision of their counsel, was executed. Its terms and stipulations were matured after such discussion and deliberation. It was prepared to supersede and rescind the other contracts existing, and to produce new relations of the parties to the subject-matter embraced within its terms. We must look at the circumstances surrounding the parties, in giving construction to the language used.. Defendants’ claim to commissions cannot be recognized under the contract of 1877, unless expressly or impliedly reserved by the terms of the new instrument of May, 1883. McCreery v. Day, 119 N. Y. 1, 23 N. E. 198. The instrument provided in terms that defendants should transfer and assign to plaintiff “all orders received for goods and not filled in full, and to hand over and deliver on receipt thereof orders which may be hereafter-received by them growing out of their connection with said business carried on by them.” Then it provides for the payment of $10,000 in cash by plaintiff,, and in addition thereto a note was to be made by plaintiff for $25,452.98 on time; and, for the purpose of having security for the note, the defendants were to “collect the outstanding accounts and those for orders unfilled at this date, and as fast as collections made to apply on said note till paid, and when note is paid the balance collected of said accounts to be paid and those not collected to be transferred” to plaintiff. No words of reservation are found in the language used to describe the accounts. On the contrary, “the collections” are to be applied or transferred to plaintiff. The defendants expressly stipulated to use all due diligence in collecting such accounts. However, the defendants claim that the words at the close of the instrument should be construed to give them a commission of 10 per cent, on orders unexecuted at that date. The clause reads, viz.: “All orders up to this date unexecuted to be filled through the said Prossers as sales agents, as before.” Prior to that time the arrangement of the parties was evidenced by the agreement of the 22d of January, 1877. By turning to that instrument, it is found to provide that defendants have the sales in the United States and Canada, and the plaintiff was to indemnify the defendants from all suits for infringement of patents, and the plaintiff was not at liberty to sell or give, any license to any persons to use the said brake within the said territory without the consent of the defendants and payment of 10 per cent, on the amount of any sales. The contract further provided in terms, viz.: “The said Thomas Prosser & Son, in consideration of said ten per cent, to be paid them as aforesaid, and as such agents, do hereby agree to use their best efforts to promote the sale of said brakes, all canvassing and advertising expenses to be paid by them.” The consideration for the 10 per cent, commission is thus clearly defined. By the terms of the compromise or rescinding agreement, the defendants were relieved from the burdens which they had assumed as a consideration for the commission to be received for sales made by them pursuant to the terms of the agreement of 1877. When the agreement of 1877 was abandoned by the act of the parties, of course the defendants ceased to be sales agents, and under its terms "ceased to be bound by the stipulations which cast upon them burdens, and were not required to render the “consideration” theretofore due from them as an equivalent for the 10 per cent, commission. Under such circumstances, it does not seem to be a reasonable construction to hold that the defendants were to receive 10 per cent, commission upon the unexecuted orders to be thereafter filled. The construction put upon the instrument by the learned referee seems more reasonable. He found: “That said agreement does not provide that defendants should have commissions on unfilled orders” or on “filled orders.” He also found that there was no account stated between the parties.

Plaintiff objected to the withholding of its money by the defendants, and by receiving part thereof did not forfeit its rights in the sum wrongfully withheld. Burnside v. Matthews, 54 N. Y. 80. Defendants held the moneys of the plaintiff, and by asserting that the lesser sum must be received by the plaintiff in full did not produce an accord and satisfaction. The case of Schuyler v. Ross (Sup.) 13 N. Y. Supp. 944, differs from this. There a sale had been made of bark, and the plaintiff by accepting the check admitted the measurement claimed to be correct. Hills v. Sommer, 53 Hun, 392, 6 N. Y. Supp. 469, was a case where a draft was sent for the amount alleged to be the balance for goods sold after deducting for the parts that were defective, and the defendants disputed the liability for any greater sum than the draft they sent, and plaintiff accepted the same as a compromise of the dispute. Here the plaintiff did not acquiesce in the claim of the defendants, but objected to the sufficiency of the advances, and expressly notified the defendants that the sums remitted would be credited on account. Stenton v. Jerome, 54 N. Y. 480; Ryan v. Ward, 48 N. Y. 204; Nassoiy v. Tomlinson (Sup.) 20 N. Y. Supp. 384. There was a deficiency. The defendants retained money which, by the instrument signed by them, had been assigned to and belonged to the plaintiff, and the part payment thereof to plaintiff did not discharge the defendants’ liability. Jaffray v. Davis, 48 Hun, 500, 1 N. Y. Supp. 814. The referee refused to find that defendants expended money for goods ordered, cartage, and telegrams in May, subsequent to the 19th of May, amounting to $914.92, and refused to find that defendants expended in June $408.11, and that such sums were credited on the books of plaintiff. We think such refusals were erroneous and that the evidence warranted the findings requested. Some of the evidence bearing upon the items is found in the testimony of Prosser, to the effect that he was requested to allow the goods ordered for the company to be delivered, and that all the goods and expenses mentioned in Exhibits Q and R were delivered and received by plaintiff subsequent to May 23, 18S3. Bingham’s evidence tends to the same result The plaintiff has been allowed improperly to recover for the items referred to in Exhibits Q and R, to wit, $914.92 and interest from June 1, 1883, and $46.58 and interest from July 1, 1883. The amount of the items should be deducted from the judgment.

The affidavits and papers used at special term were such that the court was called upon to exercise its discretion as to the propriety of granting an extra allowance. Burke v. Candee, 63 Barb. 552; Gooding v. Brown, 21 N. Y. Wkly. Dig. 47; Morse v. Hasbrouck, 13 N. Y. Wkly. Dig. 393; Tolman v. Railroad Co., 31 Hun, 403. It is not apparent that the discretion was abused, and therefore the order should be affirmed.

Judgment and order reversed, and a new trial ordered, with costs to abide the event, unless plaintiff shall stipulate to modify the report and judgment by deducting $914.92 and interest from June 1, 1883, and $46.58 and interest from July 1, 1883, in which event the judgment as so modified and the order are affirmed, without costs to either party of this appeal. All concur.  