
    Hills et al. v. Sommer et al.
    
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    Accord and Satisfaction—Evidence.
    Plaintiffs shipped fruit to defendants on their order. Defendants demanded a rebate on account of the bad condition of the fruit when received, which plaintiffs refused to allow, and drew on defendants for the full invoice price, which draft was returned with indorsement, “Amount incorrect; will remit.” To a letter from plaintiffs, asking what they intended todo, defendants inclosed draft for the amount which they had stated they would pay for the goods. Plaintiffs received and collected the draft, and sued for the balance. Field, that the facts showed a valid accord and satisfaction, and a judgment was properly ordered for defendants.
    Appeal from circuit court, Hew York county.
    Plaintiffs sued defendants to recover an alleged balance due on a shipment of fruit. The court ordered judgment for defendants, and plaintiffs appeal.
    Argued before Van Brunt, P. J., and Cullen, J.
    
      Louis C. Ledyard, for appellants. Mr. Palmer, for appellees.
   Cullen, J.

This action is brought for a balance due on goods sold and delivered. The defendants, fruit dealers in St. Joseph, Mo., ordered of the plaintiffs, wholesale dealers in Hew York city, shipment of certain boxes of lemons, at an agreed price. On the arrival of the goods in St. Joseph the defendants notified the plaintiffs that a part of the lemons were defective in quality and condition, and that they would not receive the goods unless a rebate in price was made as to such part. This rebate the plaintiffs refused to allow. Subsequently the plaintiffs drew their draft upon the defendants for the full invoice price. This draft was returned unpaid, with the indorsement, “Amount incorrect; will remit.” Afterwards the plaintiffs wrote to the defendants, stating the fact of the return of the draft with the indorsement, and asking the defendants to advise them what they intended to do about the matter, or to send the money. To this the defendants answered: “We inclose herewith draft on the American Exchange national Bank of Hew York, for $1,639.25, in payment of invoice as below, July 28th. Interest on amount past due, $3.25.” The draft inclosed was for the amount at which the defendants had expressed their willingness to receive the goods. The plaintiffs received and collected the draft, and then brought this action to recover the balance. Upon the trial a verdict was directed for the defendants, and the exception to such direction directed to be heard at the general term. Upon the facts stated we think the verdict was properly directed. It is unnecessary to determine whether the defendants could accept part of the shipment and reject the remainder, or whether there was a warranty that would survive such acceptance. Whether right or wrong in their view of the law, the defendants disputed their liability for the amount claimed. There was no request to submit to the jury the question of the bona fldes of this dispute. That fact was assumed, and a claim may be honestly disputed upon a matter of law as well as a matter of fact. Woodruff v. Woodruff, 52 N. Y. 53. Therefore payment of a less amount than that claimed would constitute a valid accord and satisfaction. Upon the correspondence between the parties we think it is unquestionable that the defendants sent the draft to the plaintiffs in compromise and satisfaction of the claim. The plaintiffs had been notified of the defendants’ complaint as to the condition of the goods, and their refusal to receive them, except at a specified reduction in price. The draft drawn by the-plaintiffs had been returned by the defendants as incorrect in amount. In return to the further letter of the plaintiffs, the defendants sent the draft for the exact amount they had offered to allow; the letter inclosing the draft stating that it was sent in payment of the invoice of July 28th. There can be no-misconstruction of this correspondence. It is susceptible of but one interpretation,—that the defendants tendered the draft in settlement of the claim. The court, therefore, properly refused to submit the question to the jury. The plaintiffs were bound either to reject the draft, or by accepting it to accede to the defendants’ terms. Looby v. Village of West Troy, 24 Hun, 78; Grinnan v. Platt, 31 Barb. 328. The exception should be overruled, and judgment ordered for defendants on the verdict.

Tan Brunt, P. J., concurs.  