
    OTTO KROMER, Plaintiff and Respondent, v. ANTON HEIM, Defendant and Appellant.
    I. Estoppel.
    
    1. Excess of invoice price of goods over contract price.
    (a) Where an agreement calls for the delivery Tpy a debtor to his creditor of goods at certain prices in payment of the debt, and the goods are delivered with bills having the prices annexed, and the creditor does not return the goods, an objection that the prices contained in the bills were in excess of those stipulated for, comes too late, and the delivery of the goods must be taken as payment, to the extent of the prices contained in the bills.
    H. Accord and satisfaction.
    
    1. Stipulation to settle judgment.
    
      (a) When it and the acts done under it will not sustain a plea of accord, and satisfaction.
    
    1. A plaintifE’s attorney made a stipulation, signed by him alone, whereby he agreed to accept in settlement of a judgment held by his client, goods to a certain amount, to be delivered by the judgment debtor to the judgment creditor or on his order, and upon delivery of goods to the specified amount, then to take for the balance of the judgment an assignment by the judgment debtor of his interest in a certain patent and the assets of such patent business; the judgment debtor, after having delivered goods to the specified amount, tendered an assignment of the patent and of the assets of the business, which fhe judgment creditor refused to accept. ,
    HELD,
    not an accord and satisfaction of the judgment.
    (5) What would sustain the plea.
    
    If in above put case the judgment creditor had accepted the assignment, there would have been an accord and satisfaction.
    HI. Substituted agreement. '
    
    1. Requisite to constitute.
    (a) That creditor has a right of action on it.
    1. Application.
    
    
      (a) In above put case the stipulation was held not to be a substituted agreement, because the defendant being under no obligation to do anything whatever under it, there was no consideration for it and the plaintiff had no right of action on it.
    Before Speir and Sakford, JJ.
    
      Decided November 4, 1878.
    This is an appeal from an order of the special term denying an application of the defendant to set aside an execution and to compel satisfaction of a judgment.
    The motion rose under the following stipulation.
    “New York Superior Court.”
    Otto Kromer against Autou Heim.
    Judgment
    $4,334.08, entered June 24, 1876.
    “Plaintiff will accept in settlement of the above judgment $3,000, and an assignment of defendant’s interest in Kromer & Ohlemacher belt clasp improvement patent, and assets of said patent business, if paid within one year in cash; or if defendant pays $250 in cash at the date hereof, and $250 cash within thirty days from date hereof, and $250 in belting within thirty days.-
    “$500 in merchandise in four months.
    “$240 in cash in six months.
    “$250 in merchandise in eight months.
    “$500 in merchandise in twelve months, and $500 in merchandise every four months, until the said judgment is paid. Interest to be charged to the amount of the judgment unpaid, and when said judgment shall all be paid, except the amount of one thousand dollars remaining unpaid, plaintiff will accept a transfer of defendant’s interest in said belt clasp patent and assets, and allow said $1,000 therefor.
    „ “The belting and merchandise must be furnished by the defendant on as favorable terms as would be allowed by J. B. Hoyt & Co., or Hew York rate for cash sales, and of a good merchantable quality, and such belting shall be shipped by defendant to such parties as the plaintiff may direct, and the freight paid in advance and charged to the account, and the amount paid for freight shall be deducted out of the next installment or payment by defendant to plaintiff.
    “Ho goods to be shipped by defendant without orders from plaintiff.
    “In case of defendant’s insolvency or failure to comply with the foregoing, plaintiff will not be bound to allow $1,000 for said belt clasp patent, and this stipulation is terminated. If defendant complies with the foregoing stipulation, I will not docket the judgment or issue execution thereon, and until defendant makes or shall be in default in one of said payments for ten days, all proceedings on said judgment shall be and the same are hereby stayed, and upon the performance hereof by the defendant, said judgment shall be satisfied and discharged by the plaintiff.
    “New York, July 26, 1876.
    “ J. W. FESTER, Att’y for Otto Kromer, PPff.’
    Defendant alleges that he delivered such merchandise, pursuant to the terms of the stipulation, as to leave remaining unpaid on the judgment only $1,000, and that he thereupon tendered to the plaintiff a transfer of his interest in the belt clasp patent and assets ; which plaintiff refused to accept.
    Plaintiff claimed that he was not bound to accept the assignment: 1. Because defendant shipped the goods to him at prices in excess of those fixed by the stipulation, the overcharge thereby created being $577.08. 2. Because there is nothing in the stipulation which renders it obligatory on him to accept the assignment.
    The motion was referred, and the referee denied it.
    The report of the referee was confirmed at the special term, and thereupon the order was made from which this appeal is taken.
    
      D. M. Porter, attorney, and of counsel, for appellant :
    I. An accord and satisfaction was established. 1. The stipulation was good as an accord. The plaintiff relies upon the cases of Noe v. Christie (51 N. Y. 270), and Tilton v. Alcott (16 Barb. 598), but they are distinguishable from this case. There is an element in this case which was not in those. Itere the property was to be manufactured, and was to be delivered in quantities to suit, and in such quantities as the plaintiff might direct, except the belt clasps, which the plaintiff already had, and the patent, of which he was joint owner. The agreement to manufacture and deliver is a consideration more beneficial to the plaintiff than an agreement to pay the judgment in full in cash. The case at bar therefore falls with the cases of Coit v. Houston, 3 Johns. Cas. 243 ; Payne v. Barnet, 2 Marsh. 312; Watkinson v. Inglesby, 5 Johns. 386; Billings v. Vanderbeck, 23 Barb. 546 ; Steinman v. Magnus, 2 Camp. 124; 1 East, 390; Bradley v. Gregory, 2 Camp. 383; Wood v. Roberts, 2 Stark. 417; Boothby v. Sowden, 3 Camp. 175 ; Howard v. Norton, 65 Barb. 161 ; Philips v. Bergen, 2 Id. 608; Good v. Sherman, 2 B. & Ad. 328; Pinnell’s Case, 5 Rep. 117; Andrew v. Boughey, Dyer, 756; Corwin v. Clark, 3 Exch. 375 ; Lynn v. Bruce, 2 H. Bl. 317; Lyth v. Ault, 7 Exch. 664; Jones v. Bullett, 2 Litt. 49 ; Blinn v. Chester, 5 Day, 359 ; 2 Parsons on Contracts, 5th Ed. 619, note z, and authorities there cited; Andrew v. Boughey, Dyer, 75 a ; Pinnell’s Case, 5 Rep. 117; Sibree v. Tripp, 5 M. & W. 23, 35 ; Brooks v. White, 2 Met. 285, 286 ; Jones v. Bullett, 2 Litt. 49 ; Douglas v. White, 3 Barb. Ch. 621 ; Blinn v. Chester, 5 Day, 359 ; Eaton v. Lincoln, 13 Mass. 424 ; Smith v. Brown, 3 Hawks, 580; Musgrave v. Gibbs, 1 Dal. 216; Comyn's Dig. Accord, B; Brooks v. White, 2 Met. 283 ; Henderson v. Moore, 5 Cranch, 11; Northington v. Higby, 3 Bing. & C. 454 ; Sibree v. Tripp, 15 M. & W. 23; Jones v. Perkins, 29 Miss. (7 Cush.) 139; Christie v. Craige, 20 Penn. 430 ; Grocers’ Bank of New York v. Fitch, 1 Thomp. & C. 651, 654, affirmed in 58 N. Y. 623. The referee and the court below fell into an error, because they did not make the distinction that the agreement to manufacture the goods,— that is, to manufacture goods at a fixed' price, and the services of the defendant Heim, in manufacturing and delivering them,—constituted a new consideration. The agreement is enforceable as an equitable satisfaction (Scott v. Frink, 53 Barb. 533, 543; Kelly v. Dee, 2 Thomp. & C. 286).
    II. There were other features of the accord. Plaintiff received the goods, and take his conduct, and his receipt of the invoices with each delivery, and the court must be convinced that the allegation of overcharge is entirely insincere, and was an afterthought to furnish him a pretense or plausible but unfounded excuse for refusing to satisfy the judgment. Even if there had been an overcharge, it would have no legal effect, because plaintiff has received the goods and has his pay for them. Kromer waived a tender by refusal to receive the belt clasps and an assignment of the patent (Holmes v. Holmes, 5 Seld. 525; Reay v. White, 3 Tyrwh. 596 ; S. C., 1 C. & M. 748). The plaintiff and his agent admit that the patent and assets are worthless; therefore the judgment is satisfied independently of the patent, and the agreement has been fully performed (See authorities and note to Cumber v. Wane, 1 Smith's Leading Cases, 7th Ed. p. 598, citing Sibree v. Tripp, 15 M. & W. 23). The maxim, “Weminimis curat lex," applies.
    III. It is insisted that the proposal signed by the plaintiff through his attorney, containing a written statement of the terms of a proposed purchase of personal property, which property has been delivered to, and possession of it has been taken by the plaintiff, is an acceptance of, and acquiescence in the terms of the proposal of the plaintiff to receive it, and that would be especially the case where both parties have written letters ordering compliance therewith and the acceptance of goods in performance of the contract pursuant to such orders under the contract, make it a valid contract (Dent v. North American Steamship Co., 49 N. Y. 390; Osborn v. Gantz, 60 Id. 540 ; Gaylor Manufacturing Co. v. Allen, 53 Id. 515; Fellows v. Strong, 24 Wend. 278)
    IY. Kromer’s agreement is a release (Willis v. De Castro, 4 C. B. N. S. 211; Hodges v. Smith, 1 Term Rep. 446; Greenbaugh v. McClelland, 30 L. J. Q. B. 15 ; Smith v. Mapleback, 8 Term Rep.).
    
    
      Y. If Kromer’s position is correct, that the belt clasps and patents are worthless, i. e., worth nothing, then the judgment is fully paid, as he made a contract for and upon a good consideration. Heim accepted it, and it is valid as a contract (Story v. Salomon, Ct. App. MSS.), and he performed it, and the judgment is paid. Otherwise, Heim has paid all that he is to pay before Kromer agreed to buy the belt clasps and patent for §1,000, in full satisfaction of the balance of the judgment. Until all except the §1,000 was paid the agreement was a dependent one, and as soon as all except §1,000 was paid, it became and was a substituted agreement, and either party could sue to enforce it, and it operated as a good executed accord and satisfaction,—i. e., Kromer had an absolute right to the belt clasps and patent, and Heim to a satisfaction (Good v. Cheeseman, 2 Barn. & A. 335 ; Bailey v. Homan, 3 Bing. N. C. 915; Evans v. Powis, 1 Exch. 601; Curlewis v. Clark, 3 Id. 375 ; Glockton v. Hall, 16 Q. B. 1039, cited in Smith L. Cas. 7th Ed. 601 n).
    
      J. W. Eeeter, attorney, and of counsel for respondent, urged:—I.
    The stipulation signed by plaintiff’s attorney alone, on July 26, 1876, is no contract—is no agreement, (a) It is void for want of consideration (1 Pars. on Con. 427). (5) It is void for want of mutuality. Ho action for a breach of that document could be sustained by either party. The promise of each must be concurrent and obligatory at the same time to render either binding, and should be so stated in the declaration. It is nudum pactum (Utica & Syracuse R. R. Co. v. Brinckerhoff, 21 Wend. 139, by Nelson, J. ; De Zeny v. Bailey, 9 Id. 336, by Nelson, J.). That document is merely a privilege given to defendant wholly without consideration, giving defendant time to pay the judgment, and to pay the principal portion thereof in merchandise ; and when reduced to $1,000 to throw that off, and take said assignment, which privilege was terminable at will by plaintiff. Defendant never executed or signed the document; was never bound to perform it; never agreed to do anything under it. As defendant was not bound, plaintiff was not (21 Wend. 139, above cited), further than—plaintiff not having returned the goods which he allowed defendant to deliver, plaintiff is bound to credit defendant with the amount at prices defendant charged, although said prices were in excess of J. B. Hoyt’s, or New York rates at cash sales, on the judgment. When satisfied that defendant is not acting in good faith, and has charged from fifteen to twenty per cent, more more than New York rates for cash sales, plaintiff is under no obligation to submit to the fraud of allowing defendant $577.78 more than the $1,000 he promised to throw off.
    II. The defendant is bound only to pay the judgment entered by plaintiff in full, in money, $4,334.08. The court adjudicated that, June 24, 1876. (a) Plaintiff had waited six years, since 1870, to get that judgment, and wanted no new, or other obligation from defendant,—and took none, and made none. (5) Release not under seal, and without consideration, is void (2 Johns. 438; 2 Cow. 122; Seymour v. Minturn, 17 Johns. 169; Mitchel v. Hawley, 4 Den. 414). (c) The document is merely a privilege in which plaintiff promised, on certain conditions and without consideration, to take a less sum than the amount due to him. Plaintiff has not accepted the performance. Plaintiff has distinctly refused to accept defendant’s pretended performance.
    III. Said document being no contract, the transaction or case does not constitute an accord and satisfaction. (a) Payment of a less sum than that due does not operate as an accord and satisfaction (2 Johns. 448 ; Seymour v. Minturn, 17 Id. 169). (&) Performanee has not been accepted by plaintiff as accord and satisfaction. Tender of performance is not sufficient; there is no accord unless performance is accepted (Tilton v. Alcott, 16 Barb. 598, and many cases cited), (c) Plea of accord and satisfaction is not supported by proof of a tender made to plaintiff’s attorney, who declined to accept it as satisfaction, for one of the essentials, acceptance, is wanting (Noe v. Christie, 51 N. Y. 270; Hammond v. Christie, 5 Robt. 160; Burge v. Koop, Id. 1; Geary v. Page, 9 Bosw. 300; Mitchel v. Hawley, 4 Den. 414).
   By the Court.—Speir,

By the terms of the stipulation the' price of the merchandise to be delivered was provided for. It was delivered at certain intervals of time, with the prices named and fixed at the several times of delivery. The plaintiff raises the objection that some of the merchandise had been invoiced to him at 'too high prices ; that it was provided in the stipulation that the merchandise ordered by plaintiff must be furnished by the defendant, on as favorable terms as would be allowed by New York firms at New York rates for cash sales, and of good quality; that the overcharges in defendant’s bill amount to $577.08. The objection comes too late. All the merchandise had been delivered with the bills and - prices annexed, and the goods delivered were not returned.

When the amount due under the stipulation had been reduced to $967.58, the defendant made and tendered to the plaintiff an assignment of the patent, and of the assets of the business, which the plaintiff declined to accept. Had he accepted the assignment, such acceptance, with the previous cash payments and payments in merchandise under the stipulation, would have been a full and complete accord, payment and satisfaction of said judgment.

The difficulty in sustaining defendant’s motion to set aside the execution, and to compel a satisfaction of the judgment, is that no consideration appears in the stipulation. It is a mere privilege, for which the defendant paid nothing, and came under no obligation to do anything whatever. It was entirely optional with him whether he would avail himself of making any of the payments,- or executing the assignment. The judgment was good in the hands of the plaintiff, and could be presently executed. He gave time, to the defendant by paying down $250 in- cash, and at intervals in cash and merchandise, until the whole sum should be reduced to $1,000-. It was,, in fact, reduced by the payments'to the sum of $967.08, and an. assignment of the patent, &c., was tendered, but not accepted.

It is well settled that an accord, executory, with tender of performance, is no bar to an action. There are no facts to show that there was an accord and satisfaction of the plaintiff’s judgment, and as the whole defense rested upon that, it was incumbent on. the defendant to establish it (Brooklyn Bank v. De Grauw, 23 Wend. 342; Noe v. Christie, 51 N. Y. 270), In this last case it was held that a tender was not equivalent to.execution. The plaintiff agreed to accept and did accept some cash and some merchandise in lieu of cash, and so. far the accord was executed, but the tender of the assignment of the patent and assets is not equivalent to execution, it not. having been accepted. •

The defendant’s counsel relies upon a class of cases ’ where the courts have regarded the new agreement not as an accord but as a substituted agreement, and have held it to be a good defense though not performed at the time of the suit.

Among other cases he relies upon the case of Good v. Cheeseman (2 B. & Adol. 335). Even this case has been subsequently held as not affecting the rule that an accord executory must be executed, to constitute a defense (See decision of Tindal, Ch. J., in Bailey v. Homan, 3 Bing. N. C. 915). It would seem that even in such cases the new agreement will not be held to have been substituted unless the creditor has an immediate right of action upon it. The plaintiff here had no such right arising out of any direct or implied promise of the defendant; nor was there any concurrent promise which would be binding upon either.

The order appealed from should be affirmed with costs.

Sanford, J., concurred.  