Taylor v. Nussbaum.

had, after slaughtering, been found to be bruised, for the purpose of showing that it was the usage of persons collecting bills for cattle to make deductions.

The plaintiff objected to the testimony, and the court sustained the objection, to which the counsel for the defendants excepted.

The testimony was here closed, and the cause submitted.

The counsel for the plaintiff requested the court to charge the jury, that the evidence did not show a legal authority in the witness Belden, as agent for the plaintiff, to accept a less sum than the contract price for the cattle, and that notwithstanding the payment of such sum, and the receipt of the same by said Belden, in full payment of the contract price, the plaintiff was entitled to a verdict.

The court hereupon charged the jury that the evidence produced was sufficient to show a legal authority from the plaintiff to Belden, to accept the sum paid in full of such contract price, and the jury found the following facts, subject to the opinion of the court at general term, upon the question of the plaintiff's right to recover, notwithstanding such payment and receipt.

The counsel for the plaintiff excepted to that portion of the charge of the court, wherein the court charged that the evidence produced was sufficient to show a legal authority from the plaintiff to Belden, to accept the sum paid in full of the contract price, and desired the court to note such exception. The jury thereupon found

First, That after the sale and delivery of the cattle, defendants paid to William H. Belden the sum of $911, which sum the said Belden agreed to accept in full payment of the said cattle, by reason of the same having been found bruised when slaughtered.

Second, That said Belden was legally authorized by the plaintiff to accept such sum in full payment of the contract price of the cattle.

The jury hereupon, by direction of the court, and with the consent of the parties, rendered a verdict in favor of the plaintiff, for the amount claimed by the complaint, with interest, $100.96, subject to the opinion of the court at general term,

Taylor v. Nussbaum.

on the questions of law arising in the case, with liberty to the court to dismiss the complaint.

J. B. Scoles, for plaintiff, moved for judgment on the ver dict, and insisted on the following points.

I. The question, whether the evidence produced was sufficient to show a legal authority from the plaintiff to Belden, to accept the sum paid in full of the contract price, was a question of fact, and ought to have been submitted to the jury.

II. The plaintiff never gave Belden authority to accept the sum paid, in full of the contract price. He himself says, "Plaintiff never authorized me to make any deduction. I made the deduction myself, on my own responsibility, as I wanted to get the money. Defendants refused to pay the

whole bill, and I deducted $90."

III. There was no contract or agreement between plaintiff and the defendants, that Belden should make this deduction from the bill. Even if the testimony of Max Doctor be credible, the reasonable and legal interpretation of the conversation between plaintiff and defendants is, that he, the plaintiff, would be satisfied with whatever Belden should do in the shape of a deduction, provided the defendants had a legal right to any deduction from the contract price. The sale was made by Belden, who alone knew the terms and conditions of sale. The alleged conversation between the defendants and Belden upon this subject, contained in Doctor's testimony, is in harmony with this view-if there was a contract or agreement between plaintiff and defendants, that Belden should make any deduction he pleased, whether the defendants had a legal right to it or not, it would be, without consideration, a nudum pactum, and of no binding obligation.

IV. Had Belden been legally authorized by the plaintiff to accept a smaller sum than the contract price, in full payment of the contract price of the cattle, his acceptance of such smaller sum does not deprive the plaintiff of a right of action for the balance. The payment of part is no satisfaction of the whole. There was no legal consideration for the deduction. The defendants had no legal claim to any deduction from the

Taylor v. Nussbaum.

contract price. The doctrine of caveat emptor applied to the bruised condition of the cattle. There was no warranty of soundness. There is no pretence of fraud. The payment made was not a good accord and satisfaction. (Johnson v. Brannan, 5 Johns. 269; Seymour v. Minturn, 17 Johns. 169.) That the doctrine of caveat emptor applies to the sale of the cattle, see Hilliard on the Law of Sales, 224; Fitzherbert's N. B., 94 c.

J. Cochrane, for defendants, claimed that judgment should be entered in their favor, and argued as follows.

I. The answer alleges, that in consideration of the damage suffered by the defendants, on account of the cattle having been bruised, the plaintiff agreed to settle, and did settle his claim at a less sum than he originally demanded. The evidence proves the allegation. This is no answer of an accord and satisfaction, but of an agreement between the parties to settle, and a settlement.

II. The insufficiency of a smaller sum to cancel a greater, pleaded in form of an accord and satisfaction, proceeds on the ground of the palpable inadequacy of the less to the greater sum. (Walkman v. Ingleby & Stoke, 5 John. R. 386, 391, and cases cited.) If, in addition, however, to the less sum paid, any other consideration is shown from which the court can see that a benefit could be derived to the plaintiff's satisfaction, that makes the payment of the smaller sum good as an accord and satisfaction. As, if the less sum be paid at a different place, or before the day agreed (Walkman v. Ingleby, supra; Fitch v. Sutton, 5 East's R. 230). If the amount is disputed, the acceptance of a sum smaller than the demand, is a good accord and satisfaction (Palmerton v. Huxford, 4 Denio, 166). The answer and the evidence in this case both show that the amount was disputed, and that in consideration of the cattle having been bruised, $89 were thrown off in settlement.

BY THE COURT.-We are all of opinion that upon the facts found by the jury, the defendants are entitled to judgment. Admitting that the cattle were not sold under a warranty, express or implied, as to their soundness, and that the defend

Taylor v. Nussbaum.

ants had, therefore, no legal right to claim a deduction from the stipulated price; the deduction was, however, just and equitable in itself, and its equity is a sufficient consideration for its allowance. It is sufficient to exempt the case from the general rule, that the payment of a less sum than the amount of the debt is not a good accord and satisfaction.

But it is not alone upon this ground that we place our decision. We apprehend that it is settled law, that when the claim of a creditor is disputed in good faith, and in order to settle the dispute he consents to abate a portion of his demand, the settlement, as a compromise, is valid and binding. Nor will the court inquire in such cases, whether he was legally bound to make the sacrifice. We deem it needless to refer to cases to show that such is the rule. It is sufficient to say that it was the ground of the decision of this court in Currie v. Steele, 2 Sand. S. C. R., p. 542. There is no reason here to question the good faith of the defendants. They doubtless believed that they were entitled to the deduction which they claimed.

The only question that remains is, whether the agent, Belden, had authority to make the deduction. It is said that this question ought to have been submitted to the jury. As we read the case, it was submitted to the jury, and their finding, if there was any evidence to support it, is conclusive. The testimony of the witness, Doctor, was sufficient to support it; and supposing him to have been contradicted by Belden, whether he or Belden was to be believed, it was for the jury to determine.

But, in truth, it was not necessary that the question of the agent's authority should have been submitted to the jury at all. His authority resulted from the nature of his agency; he had a general authority to sell and collect the price. The amount to be paid rested, therefore, in his discretion, and he exercised this discretion in making the settlement which he did. The sum paid to him he consented to receive as the full price to which he was entitled.

As the facts in this case have been specially found by the jury, the Code makes it our duty to render such a judgment as the finding warrants (§ 262). The verdict for the plaintiff must, therefore, be set aside, and a verdict and judgment thereon with costs, be entered for the defendants. They ought not,

Willis v. Forrest.

by a mere dismissal of the complaint, to be subjected to the risk of a second action.

WILLIS V. FORREST.

It rests wholly in the discretion of the judge who tries a cause whether he will per mit the pleadings to be read to the jury.

When the issues raised upon the pleadings are irrelevant or immaterial, the judge is not bound to submit them to the determination of the jury, and may therefore withhold from the jury the pleadings in which they are contained. In an action of assault and battery, causes of provocation cannot be admitted in evidence in mitigation of damages, unless they happened at the time of the assault, or immediately preceding it, so as to form part of one transaction. In such an action, proof of the general character of the plaintiff cannot be received in mitigation of damages.

Exceptions overruled; judgment for plaintiff affirmed, with costs.

(Before OAKLEY, Ch. J., CAMPBELL and EMMET, J.J.)

June 18; July 2.

APPEAL by defendants from a judgment at Special Term, in favor of plaintiff, for $2,852.29. A bill of exceptions was

attached to the record.

The action was for an assanlt and battery, committed by the defendant on the plaintiff, in the month of June, 1850.

The defendant, in his answer, admitted that he had inflicted several blows upon the plaintiff, at the time and place mentioned in the complaint, but denied that he had done so without provocation. The answer then proceeded to set up as a full justification and defence, and with details unnecessary to be stated, that the plaintiff's conduct towards him, the defendant, had been uniformly treacherous, cowardly and false; that he had availed himself of the defendant's hospitality as a means of destroying the defendant's tranquillity of mind, and the dignity and purity of his wife; that he had pursued a system of stealthy and secret intercourse with defendant's wife; had taken with her unworthy and criminal liberties, and had introduced habits of debauchery into the defendant's household; that the