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and 118 New York State Reporter price as claimed by defendant, and balanced with the words, "To check in full.” Plaintiffs took the check to defendant's purported agent, and stated to him that it did not pay the bill in full, but nevertheless kept the check. Held that, by keeping the check, defendant adopted the condition of the tender, and could not, therefore, maintain an action for the balance
which they claimed to be due. 2. SAME-LIQUIDATED Claim.
Where defendant in good faith disputed the amount due under a con tract with plaintiffs, plaintiffs' claim was not liquidated, so as to prevent
the acceptance of a check, sent with a statement that it was to be in . full, from operating as a satisfaction of plaintiffs' entire claim. 3. SAME-KNOWLEDGE OF CREDITOR.
Where a creditor had actual knowledge that a check sent by the debtor was regarded as in full satisfaction of the debt, the fact that the creditor did not read a statement to that effect, sent with the check, did not pre
vent acceptance of the check from operating to discharge the entire debt. Appeal from Trial Term, Orange County.
Action by James B. Laroe and John G. Laroe against the Sugar Loaf Dairy Company. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiffs appeal. Affirmed.
Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
A. H. F. Seeger, for appellants.
HIRSCHBERG, J. The plaintiffs are copartners engaged in dairy farming at Sugar Loaf, in Orange county. For some years immediately preceding the transactions which occasion this litigation they have sold their milk to the defendant, a domestic corporation, at a discount from New York market prices. They claim to have made an oral agreement with N. S. Knapp, defendant's secretary, in September, 1901, to sell and deliver their milk to the defendant from October 1, 1901, to April 1, 1902, at the market price, free from discount. They did deliver the milk during the months referred to, and have received payment therefor at the old price, and this action is brought to recover the amount of the discount retained by the defendant. At the close of the plaintiffs' case the court directed a verdict in favor of the defendant upon the ground that the plaintiffs had accepted a check for each month's delivery for the less amount in full, and the accuracy and soundness of this direction are under review upon this appeal.
It may be conceded that there was sufficient evidence to establish the making of the agreement, and that Knapp had authority to make it. The defendant, however, denied the authority of Knapp to bind it by such an agreement, and such denial was made early in the course of the dealings which are the subject of the controversy, and the denial was made in apparent good faith. The agreement was made on the plaintiffs' behalf by the plaintiff John G. Laroe, a brother-in-law of Knapp, and he knew at the time that the defendant was paying to its other customers only the market price less the discount. By the terms of the agreement, payment for the milk delivered each month was to be made on the 20th day of the month following each month's delivery; the first payment accordingly coming due on November
20, 1901. A day or two before November 7, 1901, John G. Laroe had a conversation with the defendant's president, Mr. Sanford, and was informed by him that Mr. Knapp had no authority from the defendant to make an agreement binding it to pay the market price. On November 7, 1901, the defendant served upon the plaintiffs a written notice that the price which the company would pay for their milk would be only “the price fixed by said company to be paid to all other producers and shippers of milk at Sugar Loaf, N. Y.”; that the agreement which the plaintiffs claimed to have made with Knapp was wholly without authority; and that “the said company will not recognize any such agreement, or pay any money on account thereof, in excess of said price, in any month, from the ist day of October, 1901.” To this communication the plaintiffs replied in writing on November 12, 1901, stating, in effect, that they claimed a valid contract at the New York market price, without any deduction, and that, if less was paid them, they would give the defendant credit for the amount received, and hold it for the balance. On November 20, 1901, the defendant sent the plaintiffs a check for the October milk, accompanied with a statement showing the amount of milk delivered, and the price computed with the disputed discount, and balanced with the words, "To check in full.” On receiving this statement and check, Mr. John G. Laroe took the latter to Mr. Knapp, saying, “Now, this check don't pay this bill in full.” Mr. Knapp replied, “That is all that Sanford said he would pay on this bill.” On each succeeding month a statement was sent to the plaintiffs, balanced by check in full, and accompanied with a corresponding check, and all the checks were retained and used by the plaintiffs without any further protest or opposition.
It would seem that the plaintiffs are foreclosed from further claim. They knew that their claim was disputed by the defendant, and that it was disputed, not in denial of the making of the agreement, but of the authority of the agent to bind his principal. With this knowledge, they elected to accept the amount which the defendant tendered in full, and with full knowledge, or the means of knowledge, that it was so tendered. In such circumstances, it has been frequently held that the acceptance adopts the condition of the tender, and that no disclaimer by the creditor will avail to reserve a right of further recovery. People ex rel. McDonough v. Board of Managers, etc., 96 N. Y. 640; Fuller v. Kemp, 138 N. Y. 231, 33 N. E. 1034, 20 L. R. A. 785; Nassoiy v. Tomlinson, 148 N. Y. 326, 42 N. E. 715, 51 Am. St. Rep. 695; Logan v. Davidson, 18 App. Div. 353, 45 N. Y. Supp. 961, affirmed in 162 N. Y. 624, 57 N. E. 1115; Wisner v. Schopp, 34 App. Div. 199, 54 N. Y. Supp. 543; Lewinson v. Montauk Theater Co., 60 App. Div. 572, 69 N. Y. Supp. 1050; Whitaker v. Eilenberg, 70 App. Div. 489, 75 N. Y. Supp. 106; Genung v. Village of Waverly, 75 App. Div. 610, 77 N. Y. Supp. 581; Brown v. Symes, 83 Hun, 159, 31 N. Y. Supp. 629; Reynolds v. Empire Lumber Co., 85 Hun, 470, 33 N. Y. Supp. III; Freiberg v. Moffett, 91 Hun, 17, 36 N. Y. Supp. 95.
The claim of the plaintiffs cannot be regarded as liquidated, within the meaning of that term as applied to the subject now under consideration. There was a genuine dispute between the parties as to the amount of the valid indebtedness, and it is only an undisputed liquidatand 118 New York State Reporter ed claim, or one not disputed in good faith, which cannot be paid at less than its face without, a new consideration. People ex rel. McDonough v. Board of Managers, etc., and Nassoiy v. Tomlinson, supra. Moreover, it has been held in a very late case in the First Department that the rule that an entire indebtedness cannot be discharged by a partial payment, even when so accepted, is not looked upon with favor, and is confined strictly to cases falling within it. Jackson v. Volkening, 81 App. Div. 36, 80 N. Y. Supp. 1102. Nor could the plaintiffs avoid the effect of the acceptance of the checks by the assertion that they did not notice the condition attached to the statements that such checks were remitted in full. In Whitaker v. Eilenberg, supra, there was no specific statement that the checks were remitted in full, but it was held sufficient that the creditor fully understood that they were so intended. The plaintiffs knew that the checks represented the full amount which the defendant regarded itself as obligated to pay. Whether they read the statements or not, it is undisputed that they knew that the checks were in fact tendered in full, and that they were sent to be received, if accepted, in full discharge of the indebtedness; and their acceptance, under all the authorities, operated as an acceptance of the condition, and as a payment and satisfaction.
There is nothing in the cases of Eames Vacuum Brake Co. v. Prosser, 157 N. Y. 289, 51 N. E. 986, and Komp v. Raymond, 175 N. Y. 102, 67 N. E. 113, in conflict with the line of authorities hereinbefore cited, and both are distinguishable therefrom in fact and principle. The judgment and order should be affirmed.
Judgment and order affirmed, with costs. All concur.
THOMAS V. INTERNATIONAL SILVER CO.
(Supreme Court, Appellate Term. November 6, 1903.) 1. APPEAL-TAXATION OF COSTS-OBJECTION.
On appeal from an order denying a motion for retaxation of costs, the record must show what items were objected to, and the grounds of ob
jection. Appeal from City Court of New York, Special Term.
Action by Clarence E. Thomas against the International Silver Company. From an order taxing costs, defendant appeals. Affirmed.
Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
I. B. Stewart, for appellant. ,
BLANCHARD, J. There is nothing in the record on this appeal to show what particular items of the bill of costs the defendant objected to when the bill was before the clerk of the court for taxation. The affidavit of the defendant's attorney, made after the bill was taxed, indicates only that a general objection to the taxation of any costs was interposed. There is no statement of the grounds of objection. The record should show what items in the bill were objected to, and the grounds thereof, in respect to each item objected to. Lotti v. Krakaner, i Civ. Proc. R. 312; Comly v. Mayor, i Civ. Proc. R. 306, 317; Matthews v. Matthews (Sup.) i N. Y. Supp. 222.
The order denying defendant's motion for retaxation of costs is affirmed, with costs and disbursements. All concur.
GRAY v. MEYER et al. (Supreme Court, Appellate Division, Fourth Department. November 17, 1903.) 1. WRITTEN CONTRACT- PAROL EVIDENCE.
A written agreement to purchase a person's tobacco crop for a certain year, providing that the tobacco should be free from “hail, frost, pole burn, stem rot, fats, wet buts, wet tobacco and free from trashy stuff,” and should "be delivered free from any damage,” was a complete contract, and could not be varied by parol evidence to the effect that damaged tobacco, denominated “grasshopper eaten tobacco," was to be taken with the rest. Appeal from Trial Term, Steuben County.
Action by Douglas W. Gray against Isaac Meyer and another. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Reversed.
Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.
Warren J. Cheney, for appellants.
SPRING, ). The plaintiff has sued for damages arising from alleged breach of a written contract entered into with the defendants. The plaintiff is a farmer and tobacco raiser, and the defendants are dealers in tobacco. In the fall of 1901 they purchased of the plaintiff his crop of tobacco, evidenced by the following agreement:
"Corning, N. Y., Sept. 2nd, 1901. “This is to certify that we have bought of D. W. Gray his 1901 crop of tobacco in bundle, said tobacco to be free from hail, frost, pole burn, stem rot, fats, wet buts, wet tobacco and free from trashy stuff and to be delivered free from any damage at Corning, on or about January. Acres 18. Price per lb. 11c. Paid on contract $50.00.
H. M. Billington, Agt.
"I. Meyer & Co." The agreement was executed in duplicate, and the one signed by the plaintiff was delivered to the defendants. When the plaintiff wrapped his tobacco in bundles for the defendants, he included a considerable quantity of tobacco which had been eaten by grasshoppers. An inspection of it early in January by the defendants disclosed its condition, and they insisted upon its being rehandled, and the grasshopper eaten tobacco removed, which the plaintiff declined to do, and refused to deliver the tobacco unless the grasshopper eaten tobacco was taken with the rest. Upon the trial the plaintiff was permitted to show that it was the understanding of the parties that tobacand 118 New York State Reporter co denominated “grasshopper eaten" was not to be excluded from the sale. This evidence was objected to by the defendants on the ground that it tended to vary or contradict the written agreement. The evidence showed that tobacco so eaten was damaged, and the court so stated to the jury, but permitted them to pass upon the question whether tobacco damaged in that way was to be included within the terms of the contract.
The contract was complete. It provided that the tobacco was to be free from certain defects, and then contained the general clause that it was "to be delivered free from any damage.” The proof is clear, and it must be self-evident, that the tobacco leaves which had been mulled over and eaten through by grasshoppers were not "free from damage.” While, within well-defined rules, parol evidence is competent to explain the equivocal terms of a written agreement, or fill out an incomplete one, it is never admissible to vary or contradict a clear, unambiguous agreement-a contract which plainly was designed to express the entire understanding of the parties. Mead v. Dunlevie, 174 N. Y. 108, 66 N. E. 658. Jamestown Business Association, Limited, v. Allen, 172 N. Y. 291, 64 N. E. 952, 92 Am. St. Rep. 740.
In permitting proof of previous parol negotiations between the parties to be given, and allowing the jury to determine, as a question of fact, whether “grasshopper eaten tobacco should be excluded” from the sale, we think the learned trial judge committed error prejudicial to the defendants, requiring a reversal of the judgment. The judgment and order should be reversed, and a new trial ordered, with costs to the appellants to abide the event.
Judgment and order reversed, and new trial ordered, with costs to the appellants to abide the event. All concur.
RUSSELL & CO. y. McSWEGAN et al.
(Supreme Court, Appellate Term. November 6, 1903.) 1. CONTRACTS-CONSTRUCTION-QUESTION FOR COURT.
Where a contract for the payment of commissions on sale of engines was free from ambiguity and clearly expressed the intention of the parties, it was improper to submit to the jury the nature of the contract
made by the parties. 2. SAME-CONSTRUCTION.
Where plaintiffs wrote defendants that they would furnish engines on defendants' orders at the following discounts and terms for one year from August 1, 1891, to wit, 25 per cent. discount on single-valve engines from attached list, and agreed to refer to defendants all inquiries for engines from certain states, such document did not constitute defendants plaintiff's' sales agents, but merely gave them the right to purchase at such discount within the specified localities. Appeal from City Court of New York, Trial Term.
Action by Russell & Co. against Frank McSwegan and another. From a judgment in favor of defendants, and from an order denying plaintiffs' motion for a new trial, they appeal. Reversed.
See 79 N. Y. Supp. 440.
11. See Contracts, vol. 11, Cent. Dig. $ 767,