Bloomington Mining Co. v. Brooklyn Hygienic Ice Co.

McLaughlin, J.: This action was brought to recover the purchase price of a cargo of coal alleged to have been sold and delivered by the plaintiff to the defendant on or about the 13th of August, 1895. The answer denied the sale and delivery, and as separate defenses, alleged : (1) Payment; (2) settlement in full; and (3) accord and satisfaction. The plaintiff, between June 8 and September 30, 1895, sold through its agent (one Apollonio) and delivered to the defendant at its place of business several boatloads of coal. On the 30th of September, 1895, the plaintiff rendered to the defendant a bill for coal delivered to that date, which was settled by a note of the defendant. Between the 30th of September, 1895, and the 30th of March, 1896, the plaintiff also sold and delivered to the defendant at its place of business several other boatloads of coal, for which the defendant, on the latter date, settled with the plaintiff, paying the bill partly in cash and partly by note, and took from the plaintiff the following receipt: “ $2302. Mar. 30, 1896. “ Received from John H. O’Rourke note for 2 mos., dated Mclr 31/96, Twenty-three hundred & two dollars in full settlement of all demands of every kind & nature. “BLOOMINGTON MINING CO., “ By S. F. Apollonio.” (O’Rourke, it • was conceded, was the president and treasurer of the defendant and acted for it in the transaction.) Some time after the settlement in March, the plaintiff claimed it had deHvered to the defendant a cargo of coal on the 13th of August, 1895, which was not included in either of the settlements. The — 68 — defendant denied that it had either purchased or received, such" coal and refused to pay for the same, and thereupon this action was brought. The plaintiff had a verdict for the amount claimed in the complaint, and from the judgment entered thereon defendant has appealed. From the testimony introduced upon the trial it appeared that some time prior to August, 1895, the plaintiff put upon the boat Eureka, 291 tons of coal. This was not disputed, but the sole issue contested was whether or not the coal loaded upon this boat was in fact delivered to ■ the defendant. To establish the delivery the plaintiff called five witnesses — the captain of the boat Eureka, who testified in substance that she was loaded with coal and thereafter taken to the foot of Degraw street, Brooklyn, where it was unloaded and carted away “ about half a block up the dock this side of the Ice Company ; ” that he had a bill of lading of the coal, which he took to and left at the defendant’s office until the coal had been unloaded from the boat, when he went to the office and got it and .thereafter lost it. The wife of the captain testified that in August, 1895, she was living on the boat Eureka, and that in the middle of the month the boat was loaded with coal and towed to the defendant’s premises, where the coal was unloaded; that there were 291 tons of it, and that “ they shoveled it into the Hygienic Ice Company’s place,” and that she saw the bill of lading. The -dockmaster of the city of Brooklyn testified that the boat Eureka lay at the foot of Degraw street, Brooklyn, from the 13th to the 17th of August, 1895, and that he collected wharfage for such boat from the defendant. One of the stevedores, Daniel Desmond, testified that he was a member of the firm of Desmond Bros., and that in August, 1895, his firm carried coal from the docks in Degraw street to the bins of the defendant; that at that time his sister, Mary Desmond, was the bookkeeper of his firm, and that he gave to her the data from which she, as such bookkeeper, made the entries in a book kept by her of the work done by his firm for the defendant, and after, examining that book he testified that on August 17, 1895, his firm transported coal from the dock at the foot of Degraw street to the defendant’s bins, but that he was unable, from his personal recollection, to state how many tons; that at the time the coal was trans — 69 — ported he correctly stated to the bookkeeper of his firm the number of tons as given to him by one John Conlin, who was the bookkeeper of the defendant, and whose custom it was to keep track of the number of ■ tons of coal transported by the firm of Desmond Bros, for the defendant. He also testified that, after this work was done a bill was rendered to the defendant, for this and other work, amounting to $292, which was paid. Mary Desmond, the bookkeeper of the firm of Desmond Bros., testified that in August, 1895,-she kept a record of transactions between Desmond Bros, and the defendant, by making entries thereof in a certain book; that all she knew about the entries in this book concerning such transactions was derived from information given to her by Daniel Desmond; that she correctly entered in the book what he told her; that on referring to the bodk she found an entry under date of August 17, 1895, charging John H. O’Rourke, the president and treasurer of the defendant, with “ hoisting, carting and trimming 291 tons of coal at 25 cents, $72.75 ; ” that thereafter she made out a bill against the defendant, amounting to $292, which included this charge, and subsequently a check was received from the defendant in payment of the same. That the testimony of these witnesses required the submission to the jury of the question of whether or not the coal had been delivered, cannot be seriously disputed, and we do not understand that the counsel for the appellant contends to the contrary. What he does contend, however, is that the trial court erred in admitting the testimony of Mary Désmond as to the entry in the book kept by her and in permitting her to read such entry, as well as in admitting the testimony of Daniel Desmond. He objected to this testimony at the time it was offered upon various grounds, and after it had been received he moved to strike out the same. The objections Were overruled and the motion to strike out denied and exceptions taken to such rulings, which present, it seems to us, the only serious question in the case. We are, however, of the opinion that the ruling of the trial court was right. In determining that question it must be borne in mind that the purpose of the testimony of Mary Desmond and Daniel Desmond was to establish the delivery of the coal and nothing else. The fact that the plaintiff put upon the boat — 70 — Ewreka^ 291 tons of coal was not disputed,' nor was the price to be paid for such coal disputed, if delivery were in fact made. Keeping this in mind,, a brief reference to the testimony of these witnesses, taken in connection with the testimony of the bookkeeper of the defendant, will show the- correctness of the ruling within the authorities-hereafter-cited. Daniel Desmond testified that he gave to the bookkeeper correct information from which she made the entries in the book referred to; that such information was given to her on a slip of paper, which, to use his own language, “ I got it from Mr. O’Rourke’s bookkeeper. The name of the bookkeeper is John Oonlin ; he is in court. * * * Two hundred and ninety-one tons were stated by Mr. .Oonlin to have been delivered.” Oonlin testified that in August, 1895, he was in the employ of the defendant and kept what is known as the “ coal book,” in which it was his duty to enter the number of tons of coal received by the defendant at its place of business, near the foot of Degraw street, Brooklyn; that this book contained an accurate account of the num-. ber of tons delivered ; that he had no recollection, independent of this book (which he had not seen for three years, and which the defendants, notwithstanding a notice to produce, failed and neglected to produce at the trial), as to the number of tons of coal deliv-. ered during the month of August, 1895, but that it was his custom during- that time to give á memorandum to Mr. Desmond of the titimber of tons. delivered by his firm to the defendant; that it was his duty to know how many tons were delivered and that the memoranda which he gave were correct. He also testified that when bills were- presented by Desmond Bros, for charges made by such firm for transporting coal from the foot of Degraw street to the bins of defendant, it was his custom to take them “ under advisement before, they were paid,” to check them up. The testimony of these two witnesses, taken in connection with the other testimony in the case, was competent, and it. was also competent- for Mary Desmond, in connection-with her. testimony, to read the entry which she made in the book kept by her. (Mayor v. Second Avenue R. R. Co., 102 N. Y. 579 ; Cobb v. Wells, 124 id. 77 ; West v. Van Tuyl, 119 id. 620 ; Matter of McGoldrick v. Traphagen 88 id. 334 ; Clark v. National Shoe & Leather Bank, — 71 — 32 App. Div. 316 ; Curtis v. Bradley, 65 Conn. 99 ; Lapham v. Kelly, 35 Vt. 195 ; Kelsea v. Fletcher, 48 N. H. 282.) The admissibility of this testimony seems to come directly within the rule laid down in Mayor v. Second Avenue B. B. Co. (supra). There the plaintiff called as a witness a foreman who had general charge of certain work, under whom were two “ gang foremen,” each having charge of a separate gang of laborers. The foreman kept a time book, in which Avas entered the name of each laborer employed. He visited the work twice a 'day and testified that while there he entered on the time book the time of each man, as to which he had no personal knowledge, except as .the same was reported to him by the “ gang foremen,” who did not see the entries which he made. The “ gang foremen ” testified that they correctly reported to the foreman the names of the men and the time each worked. Upon this proof the court held that the time book was properly admitted in evidence, Judge Andrews, who delivered the opinion of the court, saying : “We are of opinion that the rule as to the admissibility of memoranda may properly be extended so as to embrace the case before us. The case is of an account kept in the ordinary course of business, of laborers employed in the prosecution of work, based upon daily reports of foremen who had charge of the men, and who, in accordance with their duty, reported the time to another subordinate of the same common master, but of a higher grade, who, in time, also in accordance with his duty, entered the time as reported. We think entries so made, with the evidence of the foremen that they made true reports, and of the person who made the entries that he correctly entered them, are admissible.” This brings us to the consideration of the affirmative defenses pleaded, which can be disposed of without difficulty. As to the defense of payment, it is only necessary to say that there is no claim made that the coal in question had been paid for, nor is there anything in the record from which even an inference can be drawn that there was a settlement between the parties in reference to it. As to the defense of accord and satisfaction, there is no merit in it, Both parties at the time of the settlements in September, 1895, and in March, 1896, were ignorant of the fact that the boatload of coal in question had, in fact, been delivered to the defendant. Under-such circumstances, the rule of accord and satisfaction does not — 72 — apply. That rule only applies where a demand is unliquidated and one party claims more than the other concedes to be due, and, as an adjustment and settlement of the dispute between them, an arbitrary amount is fixed upon and paid. (Nassoiy v. Tomlinson, 148 N. Y. 329 ; Fuller v. Kemp, 138 id. 231.) Here the. liability of the defendant to pay for the coal in question, if it were delivered, is not disputed, and where a liability to pay a certain amount-is not disputed, the acceptance of a less sum than is due will not discharge the debt, when the acceptance of such sum arises-from a mutual mistake; and this is so, even if a receipt in full be given. The element of a consideration is lacking and the-obligation of the debtor to pay the entire debt is not satisfied. (Fuller v. Kemp, supra) “ ‘ To constitute an accord and satisfaction,”’ says the Court of Appeals in Fuller v. Kemp, quoting from Preston v. Grant (34 Vt. 201), “‘it is necessary that the money should be offered in satisfaction of the claim- and the offer accompanied with such acts and declarations as amount to a. condition that if the money is accepted it is accepted in satisfaction, and such that the party to whom it is offered is bound to understand, therefrom that if. he takes it he takes it subject to such condition. When a tender or offer is thus made the party to whom it is made-has no alternative but to refuse it or accept it upon such condition.’ ” Applying this rule, it at once becomes apparent that, notwithstanding the settlement in September and the settlement in March, and the receipt then given, the defendant was not discharged, from its obligation to pay for the coal in question. We have examined the other questions raised by the appellant, but it is unnecessary to refer to them further than to say that after-such examination we do not think any error was committed calling for a reversal of the judgment. The judgment and order must be affirmed, With costs. Rumsey, Patterson and O’Brien, jj., concurred; Van Brunt, P. J., dissented.