Rose v. Am. Paper Co.

• Decision Date: 18 November 1912
• Citation: 83 N.J.L. 707,85 A. 354
• Parties: ROSE et al. v. AMERICAN PAPER CO.
• Court: New Jersey Supreme Court

85 A. 354

83 N.J.L. 707

ROSE et al.

v. AMERICAN PAPER CO.

Court of Errors and Appeals of New Jersey.

Nov. 18, 1912.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Abraham Rose and another, trading as A. Rose & Son, against the American Paper Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

John A. Hartpence, of Trenton (Vredenburgh, Wall & Carey, of Jersey City, on the brief), for plaintiff in error.

J. Fithian Tatem, of Camden, for defendants in error.

TRENOHARD, J. In October, 1907, the American Paper Company, the defendant below, ordered of A. Rose & Son, the plaintiffs below, 100 tons of "good, clean, dry, mixed papers" at 47 1/2 cents per hundredweight, f. o. b. Philadelphia, Pa. The paper was shipped by the plaintiffs and received by the defendant. Upon unloading the paper the defendant claimed that it was of Inferior quality, dirty, and wet, and notified the plaintiffs that the stock was not satisfactory. A few days thereafter one Mr. Rose, a member of the plaintiffs' firm, went to Bogota, where the defendant's mill is located, and had a conversation with the general manager of the company. As to just what took place at this interview, there is a conflict of testimony. Both sides admit that it was agreed that the price of the paper should be reduced from 47 1/2 cents to 45 cents per hundredweight.

The manager of the defendant company testified that it was also agreed that the percentage of moisture in the paper should be determined by drying samples, and that settlement should be made upon the basis of dry weight. This was expressly denied by the plaintiffs, one of whom testified that the only agreement made was the reduction in price from 47 1/2 cents to 45 cents per hundredweight.

Two payments were made, both by check, one for $289.08 and the other for $313.75, amounting to $602.83, leaving, according to the plaintiffs' contention, a balance still due of $331.37, for which suit was brought.

At the close of the trial at the Bergen circuit, the defendant moved for the direction of a verdict, "on the ground that the acceptance and use of the checks, under the circumstances disclosed by the evidence in the case, amounts to an acceptance of the terms upon which the cheeks were tendered, and that the plaintiff is thereby barred from a recovery of any balance shown." The motion was denied, an exception allowed, and the case submitted to the jury. The jury found a verdict for the plaintiffs for $206.22, and the judgment entered thereon is here for review.

The only question requiring examination may be determined by a consideration of the propriety of the denial of the motion for a direction of a verdict. That motion, it will be observed, was rested upon the proposition that the plaintiffs' recovery was barred by an accord and satisfaction.

At the time of payment, said to have been accepted in satisfaction, the amount of the plaintiffs' claim was in dispute.

Now, of course, the rule of law is that where a claim is unliquidated or in dispute payment and acceptance of a less sum than claimed, in satisfaction, operates as an accord and satisfaction. 1 Cyc. 329.

To constitute an accord and satisfaction in law, dependent upon the offer of the payment of a less sum than that claimed, it is necessary that the money should be offered in full satisfaction of the demand, and be accompanied by such acts or declarations as amount to a condition that if the money is accepted it is to be in full satisfaction, and be of such a character that the creditor is bound to understand such offer. 1 Cyc. 333.

The party seeking to settle for a less sum than is claimed to be due must, by his words or conduct when making the offer, clearly inform the other of what is sought and expected. The transaction must be such that the condition is as plain as the tender, so that the acceptance of the tender will involve the acceptance of the condition. In other words, the tender and the condition must be incapable of severance; for otherwise the inference will not be drawn that the acceptance of the tender involves the acceptance of the condition. Lang v. Lane, 83 Ill. App. 543, approved Reid v. McMillan, 189 Ill. 411, 59 N. E. 948.

The condition may be expressed in the check itself (Kerr v. Sanders, 122 N. C. 635, 29 S. E. 943), or in the letter or account (Whitaker v. Eilenberg, 70 App. Div. 489, 75 N. Y. Supp. 106), or receipt accompanying the remittance (Nassoiy v. Tomlinson, 148 N. Y. 326, 42 N. E. 715, 51 Am. St. Rep. 695), or even orally in conversation (Cole v. Champlain Trans. Co., 26 Vt. 87).

Whether a tender is accompanied by such acts and declarations as are necessary, on its acceptance, to constitute an accord and satisfaction must, of course, be determined from the facts of each particular case. If the evidence is...