Opinion
May 1, 1912.
James W. Carpenter [ George D. Yeomans with him on the brief], for the appellant.
John M. Coleman and Walter L. Post, for the respondent.
Plaintiff has recovered a balance found due for brushes delivered by his firm to the defendant under a contract in writing in the form of a proposal by defendant on November twelfth and an acceptance by plaintiff's firm on November 17, 1903. The court erroneously allowed evidence of preliminary conversations merged in the contract, and evidence of modification of the contract by conversations between the vendors or their agent, and one Gove, a person in defendant's employment, unauthorized to contract for it. Gove was in defendant's mechanical department, and dissociated from any business relation to defendant that gave him apparent authority. The contract required delivery of 400 brushes within fourteen days of the date of the proposal, and completion of the order at the rate of 100 brushes per day thereafter, and in case of default it was stipulated that the price per brush should be reduced from ninety-eight and one-half cents to the amount of the lowest bidder, which was seventy cents, of which penalty the vendor had been specifically advised. This evidence of modification of the contract affected the question of due performance. The defendant pleads failure to make timely delivery, and the evidence conclusively showed non-performance in that regard. The proposal is dated November 12, 1903, and the vendors began delivery on November twenty-fourth. It was their duty to deliver 400 brushes within fourteen days from November twelfth, so that the last day to deliver fell on November twenty-sixth. But by that date it had delivered but 56. If the deliveries were due within fourteen days from the time of acceptance, that is, November 17, 1903, the time expired December first, when the deliveries were only 254. Nor were as many as 400 brushes delivered earlier than December fifth, nor were 100 brushes delivered on any one day until December fourteenth, but from and including that date more than 100 brushes per day were delivered. This is the plaintiff's evidence, and in view of it his contention that he was retarded by defendant's insistence upon premature deliveries does not admit of serious discussion. There was no occasion for protest on defendant's part, nor was there waiver by acceptance. The failure to deliver according to contract of itself reduced the price per brush from ninety-eight and one-half cents to seventy cents. The number delivered was 2,500 less 102, or 2,398, which, at seventy cents per brush, would be $1,678.60, and admittedly there has been paid $1,665.29. The defendant's contention that 19 brushes were not delivered was a question for the jury. Aside from such contention, the amount due could be only $13.31 and some interest. Was there accord and satisfaction? The defendant claimed by letter on January 27, 1904, that on account of delayed delivery the price became seventy cents; that the 19 brushes had not been received; that this letter was written after the vendors were advised of the claim of shortage and alleged failure to make deliveries. The plaintiff gave evidence through Mr. Barron and Mr. Copeland that they did not receive the letter, but that does not show that it was not received by the vendors. It was received in evidence as a letter by consent and was proved to have been sent. In this state of the contention a voucher check was sent to and used by the plaintiff for the exact balance shown due by the letter of January twenty-seventh, and it stated that it was received "in full of the above account," and it appeared on its face that it was in payment of a bill rendered, the net amount of which was stated as the sum paid. The bill rendered was for 2,500 brushes at ninety-eight and one-half cents, and Van Cott, defendant's purchasing agent, wrote them correcting the bill in the letter of January twenty-seventh. The vendors drew the money on March twenty-fifth, knowing full well that it was tendered in full settlement, and later under date of April first acknowledged receipt of it and inclosed a statement showing a balance due. I consider that the vendors accepted the check tendered in settlement of the controverted account.
The judgment and order should be reversed and a new trial ordered, costs to abide the event.
JENKS, P.J., HIRSCHBERG, CARR and WOODWARD, JJ., concurred.
Judgment and order of the County Court of Kings county reversed and new trial ordered, costs to abide the event.