
    William J. Logan and Frank J. Logan, Respondents, v. Marshall T. Davidson, Appellant.
    
      Accord and satisfaction— the acceptance of a sum offered in satisfaction discharges the claim, although stated not to he accepted in full of the claim.
    
    Where the question as to the amount of an indebtedness is, by consent of the'parties, submitted to an arbitrator, and the debtor subsequently sends to the creditor a check for the amount of the award, accompanied by a written statement that it is “in full settlement of account to date,” the payment must be considered as made upon the condition of its acceptance in satisfaction of the debt, and the acceptance and acknowledgment in writing of the check by the creditor constitute an accord and satisfaction and cancellation of the claim which is not affected by the fact that the letter of acknowledgment states that the check has been placed to the debtor’s “credit on account,” and that the creditor states therein that he has further claims against the debtor and “must decline to accept the payment as final.”
    Appeal by the defendant, Marshall T. Davidson, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 19th day of December, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes,
    
      Alexander Cameron and William B. Hill, for the appellant,
    
      Edward P. Lyon, for the respondents.
   Hatch, J.:

The plaintiffs and defendant entered into a contract respecting the construction and delivery of a number of boilers and the performance of other work. After the completion of the contract, a dispute arose respecting the sum which was due from the defendant to the plaintiffs, and thereupon it was determined to leave the matter to an arbitrator who was agreed upon.' The arbitrator made his report, finding that a certain sum was due from the defendant to the plaintiffs. The defendant thereupon wrote the plaintiffs this letter:

' “ Brooklyn, Sept. 2is.¿, 1893.
“ Messrs. Farrell, Logan & Go.:
.“.Gentlemen.-^- Inclosed, I hand you check for $1,859.02 dollars, in full settlement of account to date. Please acknowledge receipt of same and oblige, .Yours truly,
“ M. T. DAVIDSON.”

This, letter. contained a. statement of account as claimed by the . defendant, and the check was-made for the full amount of that account and of the sum found to. be .due by the arbitrator. The plaintiffs received the letter and the check, indorsed aud collected the latter, applied the'same upon the defendant’s account..and wrote the defendant this letter:

“ Mr, M. T. Davidson,
“ Brooklyn, - N. T<:
.“Dear Sir.— Yóurs of this morning, with Check enclosed fdr $1,859.02* received, and same has been placed to your credit on account.
“ Owing to the exeessive charge for . castings, etc., as well as the fact, that the award made by Mr. D. F. Quinn is entirely inadequate, and also to the fact- that you have charged us three, thousand ($3,000.00) dollars for the furnaces, which you agreed to furnish for twenty-five hundred ($2*500.00) dollars, we must decline-to accept the payment, as final, . ■-
“We also notice that no interest whatever has been allowed for. the- borrowed money or on the merchandise, account, the bulk of which has"been standing nearly• three years.. Kindly make an appointment with a view of 'adjusting above difficulties. .
“ Yours respectfully,
' “ FARRELL, LOGAN & SON.”

To this letter, the defendant made no reply, and they again wrote the defendant, as follows:

“Mr. M. T. Davidson,
“ Brooklyn, N. Y.:
“Dear Sir —On Sept. 22nd'we wrote you.relative to balance of account and have received no reply to same."
“Kindly let us know what yon propose doing in the matter on or before Friday of this week or we shall be compelled to put the matter in the hands of our attorneys.
“Tours respectfully,
. “FARRELL, LOGAN & SON.”
In answer to this letter the defendant sent the following reply;
“ Messrs. Logan Iron Works,
“ Greenpoint, L. I.:
“ Gentlemen.— I have yours' of the ilth referring to yours of the 22d ult., which was also received. 1 have only to say, reference to yours of 22d, that when I make an agreement I stand by it, and I propose you will stand by the award made by Mr. Quinn. As to the price charged for castings, when you make the statement . that it is excessive you simply know better. As for my ever agreeing to furnish the furnaces for $2,500, you also know better than that. Now I have only one thing to say, that when you start in make sure what you propose to do. I also have a bill which, in equity, you ought to pay, amounting to. a number of hundreds of dollars, and which I will produce at proper time. You can place the matter in the hands of your attorneys just as quick as you like.
“ Respectfully yours,
“M. T. DAVIDSON.”

There is no oral testimony in the case which modifies or changes in any degree the force and effect of these letters, nor is there, any dispute of fact in connection therewith. They remain tó be considered and construed by what appears upon their face in connection with the undisputed fact that the defendant did not answer the first letter. This condition created a question of law for the court, and upon this subject there was no question óf fact for submission to the jury. (Dwight v. Germania Life Ins. Co., 103 N. Y. 342; Edall v. The New England R. R. Co., 18 App. Div. 216.) The defendant insists that these letters and the transaction constituted . a completed accord and satisfaction, and that he became entitled to the direction of a verdict thereon in his favor. In Fuller v. Kemp (138 N. Y. 231) the Court of Appeals quote with approval the language Used in Preston v. Grant (34 Vt. 201), viz.: “ To constitute an accord and' satisfaction it is necessary that the money should be offered in satisfaction of the claim, and the offer accompanied with such - acts and declarations as amount to a condition that if the money is accepted it is accepted in satisfaction, and. such that, the party to whom it is offered is bound to understand therefrom that, if he-takes it, he takes it subject to such condition. When a tender or offer is thus made, the party to whom it is made has no alternative but to -refuse it, or accept it upon such condition. If he takes it his claim is canceled, and no protest, declaration, or denial of his, so long as the condition is insisted on, can vary the result. The principle is too well settled in this State to. require either argument or the citation of authorities' to support it.” Tested by this rule, the first letter of the defendant answered in every essential particular the requisites of a good accord. It states that the amount inclosed is.in full settlement of account to date, and requests a receipt for the same. This, in effect, is a statehient that the amount is in satisfaction' of the claim, and imposes the condition that if it is accepted it must be in full satisfaction. It notified the plaintiffs of the condition upon which the check was sent in unmistakable terms, and thereby imposed upon them the duty of accepting it in accordance with the condition or of rejecting it. It was-accepted, and in consequence operated as a satisfaction of the claim and thus constituted a complete accord and satisfaction* It is said that it could not have this effect,.as the plaintiffs immediately noti- ' tied the defendant of the condition upon which they received the payment. We are not able to see how- this changes the condition in the slightest degree, for the fact remains, that the plaintiffs had notice of the condition upon which the payment was made and with full knowledge of such condition they accepted it.

. The law permits of but two alternatives, either to reject or accept in-accordance with the condition. The plaintiffs were not permitted to-accept and disregard the condition, or to accept and imposé a condition which destroyed the one upon which payment was tendered. To permit this would be to nullify the terms upon which the payment was made. It is claimed, however, that the plaintiffs’ contention has the support of the authority we have cited. In that case the defendant wrote the plaintiff, in reply to the bill rendered, inclosing his check for a sum less than the amount of the bill. This letter invited a reply from the plaintiff respecting his attitude in regard to the tendered payment, and although the statement which accompanied the check said that it was payment in full, yet the court said that, inasmuch as a reply was invited as to whether or not the payment was so received, he became bound to respond thereto when notified that it was not received in full, for the reason that: “ Had he then remained silent it might have been .presumed that he assented to the use which the plaintiff had made of the check, and in time he would have become bound to pay the balance as upon an account stated.” This doctrine is without force in the present case, for the reason that here no request was made that the plaintiffs reply to the condition upon which the payment was made, or as to how they understood or treated it. The purpose and notice was absolute to ■make it payment in full, and the only reply asked for or contemplated was that the plaintiffs acknowledge its receipt. It follows from this that the defendant was not called upon to make any reply to the plaintiffs’ letter and could in no wise be affected or prejudiced by his failure so to do. As to the plaintiffs, they having taken it subject to the condition, could not relieve themselves from its consequences by any condition, protest, declaration or denial, no matter how framed, or how earnest the contention..

We are now to see if the defendant’s reply to the second letter changed in any wise this condition. There is nothing-in this letter which in words shows any disposition to recede from the former position, that the payment was in full; and the mere fact of sending it did not work such a result. Its statement is : “ When I make an agreement I stand by it, and I propose you will stand by the award made by Hr. Quinn.” The award made determined the amount which was due to the plaintiffs under their arrangement to submit the matter to arbitration. It was this amount that defendant included in his payment and which he insisted was the entire amount due and which he paid. When he referred to the award it must be understood as a reference to the amount 'determined thereby, and when he insisted upon that sum standing it was .equally an insistence upon whatever steps he had taken thereunder, which included the payment made. In any event," there is nothing in the letter or any of its parts which shows any intention to abandon any legal right, which he had secured; and the assertion of other rights, even though this was not expressly asserted, does not have the legal .effect of relieving the plaintiffs from the consequence which followed their acceptance and use of the check. It is quite true that accord and satisfaction is in the nature of a contract and requires a meeting of the minds of the parties. But. when one party imposes a condition, the other party is deemed to have assented to its terms when he avails himself of its benefits. He cannot accept the benefit in one breath and repudiate the condition in the next. It follows that the defendant’s motion to dismiss the complaint, made at the close of the plaintiffs’ case and subsequently renewed, should have been, granted.

The judgment should, therefore, be reversed and a new trial granted, with costs to abide the event.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event. ' , . - •  