
    Nassoiy v. Tomlinson et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    October 21, 1892.)
    Accord and Satisfaction—Evidence.
    After plaintiff made a sale of land for defendant, for which he claimed a commission of 5 per cent, on the amount realized, defendant sent him a check for 1 per cent, of the amount as plaintiff’s entire commissions. Plaintiff immediately notified defendant that he was entitled to 5 per cent., but, after defendant refused to pay more, plaintiff receipted for the amount sent as “in part payment for commissions, ” etc. Held, that the facts do not constitute an accord and satisfaction, and plaintiff may sue for the balance of the 5 per cent. Looby v. West Troy, 24 Hun, 80; Hills v. Sommer, (Sup.) 6 N. Y. Supp. 469,—distinguished.
    Appeal from circuit court, Niagara county.
    Action by J. Felix Nassoiy against David H. Tomlinson and others. From so much of the judgment entered as dismissed the complaint as to the second cause of action stated therein, plaintiff appeals. Reversed.
    
      Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      F. A. Dudley, for appellant. J. E. Pound, for respondents.
   Dwight, P. J.

The cause of action upon which the plaintiff was non-suited was for a balance of commissions alleged to be due to the plaintiff; on a sale of real estate by him for the defendants. The employment of the former and the fact of a sale, effected by him, of a farm of 60 acres, at the price of $30,000, were not in dispute. The defense insisted upon was payment of $300, or 1 per centum of the consideration realized, which was alleged to have-been received by the plaintiff, in full of his demand. The $300 was in fact received by the plaintiff, but, as he alleged, on account only, leaving due to him the balance of $1,500, or 5 per centum on the sale, which the plaintiff alleged was the commission agreed upon by the parties. The $300 was paid by check of one Chauneey, an agent of the defendants, transmitted by mail from Hew York to the plaintiff at Suspension Bridge, inclosed in a letter of Chauneey, of which the folio wing,.is a copy:

“Hew York, June 20, 1887.
“Dear Sir: I heard to-day from Mr. Griffith that the sale to Weston was completed on Saturday. I send you a check for $300, (1 per cent, on $30,000,) your commission on the sale. Please sign and return the inclosed voucher. I wish you would see that the tax rolls are corrected, etc.
“Yours, truly, [Signed] Elihu Chauncey.”

There is no paper in evidence which answers to the “ voucher” mentioned in the letter, and no evidence that any such paper was in fact inclosed. To this communication the plaintiff made the following answer:

“Suspension Bridge, N. Y., June 23, 1887.
“Elihu Chauncey, Fsq.—Dear Sir: Yours of the 20th at hand. I don’t know what you mean by sending me a check for $300. I want my 5 per cent, commissions on the $30,000. I got you $5,000 more than you could have got anybody else to get for you. Please answer at once.
“Yours, truly, [Signed] J. Felix Hassoiy. ”

To this letter Chauncey made no reply, but shortly afterwards the plaintiff called on him in Hew York, and reiterated his claim to a commission of 5 per cent., which Chauncey refused to pay, or to pay him anything in addition to the $300. The plaintiff held the check until the next January, when he collected it, and sent a receipt to Chauncey for the money, “ in part payment for commissions,” etc.

The plaintiff was nonsuited on the sole ground that the $300 was received and accepted by him in full payment and satisfaction of his disputed claim for $1,500. We think the ground of the decision Was untenable, and that the nonsuit was errefr. There is no pretense that the plaintiff did, in fact, consent to receive the $300 in full; all the evidence is to the contrary. He refused in terms to accept it in full, and receipted for it in terms as part payment only. The contention is that the payment having been tendered as in full, and accepted by the plaintiff, he is, in law, conclusively presumed to have accepted it in full. This proposition cannot be maintained. Consent, as an element of a contract, is a fact; whether or not it exists is a question of fact, to be determined upon the evidence. It cannot be determined upon any conclusive presumption of law short of an equitable estoppel. There was no such estoppel in this case. The defendants owed the plaintiff his commissions on the sale of the farm. He claimed 5 per cent., and the defendants, by their agent, sent him a check for 1 .per cent., which the agent of the defendants denominated “your commissions on the sale.” The check was no indication that it was intended as payment in full, and the voucher which the agent seems to have intended to inclose for the plaintiff’s signature was omitted. Under these circumstances, the act of the plaintiff in collecting the check and applying the avails, in part payment of his claim, did not in any manner estop him to deny that he had accepted it in full. He had neither done nor asserted anything which misled the defendants. He had received what, upon the defendants’ assertion, was no more than his due, and, upon his own, was much less, and, with full notice to them that it was not accepted in füll, he had applied it in part payment of the indebtedness as claimed by him. Ho presumption of consent to satisfy the debt could possibly, arise, under these circumstances, and without such consent there was no accord and satisfaction. Fuller v. Kemp, (Com. Pl. N. Y.) 16 N. Y. Supp. 158; McKeen v. Morse, 1 U. S. App. 7, 49 Fed. Rep. 253, 1 C. C. A. 237. The cases of Looby v. West Troy, 24 Hun, 80, and Hills v. Sommer, (Sup.) 6 N. Y. Supp. 469, cited by counsel for the defendants, are distinguished by their facts from the case in hand, and not necessarily in conflict with the principles herein stated. We think the evidence in this case fails of establishing the defense of an accord and satisfaction, and aéeordingly that the judgment on the second cause of action stated in the complaint must be reversed, and a new trial granted.

Judgment appealed from reversed, and a new trial granted, with costs to-abide the event. All concur.  