Nassoiy v. Tomlinson

• Decision Date: 28 January 1896
• Citation: 42 N.E. 715,148 N.Y. 326
• Parties: NASSOIY v. TOMLINSON et al.
• Court: New York Court of Appeals Court of Appeals

148 N.Y. 326

42 N.E. 715

NASSOIY

v.TOMLINSON et al.

Court of Appeals of New York.

Jan. 28, 1896.

Appeal from supreme court, general term, Fifth department.

Action by J. Felix Nassoiy against David H. Tomlinson and others. From a judgment in favor of plaintiff (28 N. Y. Supp. 1129), defendants appeal. Reversed.

The plaintiff sued to recover the sum of $1,200, which he claimed as a balance due him from the defendants for commissions on the sale of real estate owned by them, upon the agreed basis of 5 per cent. on the purchase price, which was $30,000. The defendants claimed that the agreement was that they should pay the plaintiff whatever they thought was right, and that the debt had been discharged by an accord and satisfaction.

Austen G. Fox, for appellants.

Frank A. Dudley and Morris Cohn, Jr., for respondent.

VANN, J.

On the 6th of April, 1887, the plaintiff sold the property of the defendants, under an agreement that he was to receive compensation for his services in making the sale, but there was a difference between them as to the amount. The sale was not completed until about June 20, 1887, on which day Mr. Chauncey, who represented the defendants in all their dealings with the plaintiff, wrote to him as follows: ‘I heard to-day from Mr. Griffith that the sale to Weston was completed on Saturday. I send you a check for three hundred dollars (1 per cent. on $30,000), your commission on the sale. Please sign, and return the inclosed voucher.’ There was a check for $300 inclosed, payable to the order of the plaintiff, and also an unsigned receipt, in these words: ‘Suspension Bridge, New York, June __, 1887. Received of the Tomlinson estate three hundred dollars, in full for commissions for sale to J. A. Weston of 66-acre lot. $300.’ Under date of June 23, 1887, the plaintiff wrote to Mr. Chauncey, saying: ‘I don't know what you mean by sending me a check for $300. I want my five per cent. commission on the $30,000.’ No reply was made to this letter, although one was requested, and, during the latter part of July or the first of August following, the plaintiff, who had in the meantime retained both check and voucher, called on Mr. Chauncey, in the city of New York, and, as he testified on the trial, asked him what he meant by sending a check for ‘$300 commission for selling the farm. I said that I wanted my five per cent. commission, as the understanding was between us. He said he wouldn't give one cent more, and I left him. * * * I knew there was a dispute between us, I claiming $1,500, and he claiming that I was only entitled to three hundred dollars, and that his check paid that; ahd, with the knowledge of that condition of affairs, I kept the check from July, 1887, to January, 1888, and then indorsed it, and drew the money, and sent him a receipt on account.’ The plaintiff never returned the blank voucher sent to him with the check, but in January, 1888, he indorsed the check, and drew the money on it, and then, under date of January 19, 1888, wrote to Mr. Chauncey, stating that he inclosed a receipt for $300, as part payment for his services, and that he still claimed he was entitled to 5 per cent. commission, and insisted on being paid at that rate. The receipt inclosed was for $300, ‘in part payment for commission.’ On the 24th of January, 1888, Mr. Chauncey wrote to the plaintiff, acknowledging receipt of the letter and voucher, and stating that he should ‘consider this payment in full for all commissions.’ The plaintiff did not return or offer to return the money so paid him. When the plaintiff rested, as well as at the close of the evidence, the defendants asked the court to direct a verdict in their favor, on the ground that, upon the foregoing facts, which were not disputed, the plaintiff was not entitled to recover, but the motions were denied, and the defendants excepted.

Two questions of fact were submitted to the jury: (1) Whether there was an agreement to pay plaintiff at the rate of five per cent.; (2) whether the plaintiff agreed to accept the three hundred dollars ‘in place of his claim for five per cent. commission.’ The jury were instructed to find for the plaintiff if they thought that the agreement to pay at that rate was made, and that the agreement to accept was not made; otherwise, for the defendants. They rendered a verdict in favor of the plaintiff for $1,200. The judgment entered on the verdict was affirmed by the general term upon its opinion written on a former appeal, but then the record did not contain the proposed receipt in full. Nassoiy v. Tomlinson, 65 Hun, 491-493, 20 N. Y. Supp. 384.

The question presented by this appeal is whether the undisputed evidence so conclusively established an accord and satisfaction as to leave no question of fact for the jury upon that subject. An accord and satisfaction requires a new agreement and the performance thereof. Jaffray v. Davis, 124 N. Y. 164, 26 N. E. 351. It must be an executed contract, founded upon a new consideration, although an agreement to accept an independent executory contract has been held sufficient. Kromer v. Heim, 75 N. Y. 574;Morehouse v. Bank, 98 N. Y. 503; 2 Pars. Cont. (7th Ed.) 817, 820. If the claim is liquidated,the mere acceptance of a part, with the promise to discharge the whole, is not enough, for there is no new consideration. Ryan v. Ward, 48 N. Y. 204. If the claim is unliquidated, the acceptance of a part and an agreement to cancel the entire debt furnish a new consideration, which is found in the compromise. A demand is not liquidated even if it...