p. 589James F. Sutton and Thomas E. Kirby, Partners under the Firm Name of American Art Association, Appellants, v. J. Sherwood Corning, Respondent.Headnote
Accord and satisfaction—when proof of the mailing of a check, postage prepaid,. raises a presumption thereof, and of its receipt—an objection that a book used bef vre the jury was not put in evidence, when too late.ZEvidence that a vendee of goods sold made a claim for a deduction from the purchase price because of the partiál destruction of the goods before delivery, and that after a conversation with the vendors he offered to pay a certain amount in satisfaction of the claim, and subsequently sent a certified check for that amount to the vendors, inclosed in a postpaid letter addressed to one of them at their place of business, and that the check had never been returned or paid, justifies a finding of an accord and satisfaction.
'The sending of the check inclosed in the postpaid letter addressed to the vendors at their place of business raises a presumption of the receipt of the check by the vendors.
The objection that a bankbook submitted to the jury was not offered in evidence, cannot be raised for the first time after the rendition of - a verdict.
Appeal by the plaintiffs, James F. Sutton and another, partners under the firm name of American Art Association, from a judgment •of the Supreme, Court- in favor of the defendant, entered in the •office of the clerk of the county of New York on the 3d day of December, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of December, 1900, ■denying the plaintiffs’ motion for a new trial made upon the minutes.
Gustavus T. Kirby, for the appellants.
L. B. Treadwell, for the respondent.
The first objection is that the verdict is against the weight of the evidence. The action was brought to recover upon a check for sixty-eight dollars and fifty cents drawn by the defendant to the order of the plaintiffs, which w;as not paid upon presentation. The check was given for the balance of goods sold by the plaintiffs to the defendant, and the defense was that before the goods were delivered
p. 590to the defendant they were partially destroyed, so that the defendant never received what he bought; that a claim, was made for a deduction because of this destruction, as- a result of which there was an accord and satisfaction between the parties, by which the plaintiffs agreed to accept a check for, thirty-one dollars and fifty cents in payment of all demands which they had against the defendant, and that said- check had been delivered and accepted. These facts, were sworn to by the defendant. He- testified to a conversation with one of the plaintiffs, as a result of which he offered to pay thirty-one dollars and fifty cents in satisfaction of the claim against him, and that he subsequently sent the check, certified, for that amount, by mail addressed to one of the plaintiffs at their place-of business, and prepaid the postage upon it. The check had never been returned or paid, and the plaintiffs insist that it had never been received.
The sending of the check in a letter postpaid to the plaintiffs at their place of business was positively testified to by the defendant, and raises a presumption of the receipt of the check by the plaintiffs. (Oregon Steamship Co. v. Otis, 100 N. Y. 446 .) That presumption the plaintiffs sought, to overcome, but the result of their evidence was such that the question was a proper one to submit to the jury and it was so submitted, and we do not feel at liberty to-overrule their determination, especially as it seems to have been satisfactory to the trial judge. The facts sworn to by the defendant, if established, as they must be deemed to have been, constitute an accord and satisfaction. .(Fuller v. Kemp, 138 N. Y. 231 Eames Vacuum Brake Co. v. Prosser, 157 id. 289 .)
The defendant produced and had identified his bank book, by which it appeared that this check for thirty-one dollar^ and fifty cents had been charged against him as a certified check. The book was not offered in evidence, but it was submitted to the jury without objection by the plaintiffs’ counsel, and no point was raised until after the verdict had been rendered. This we think was too late. If when the book had been submitted to the jury the objec- . tion had been taken, it is quite possible that it would have been offered in evidence, and any defect in the proof necessary to have it received might have been supplied, but as it was permitted to go to the. jury without objection and without any question as to its
p. 591competency, we do not see that the plaintiffs are in any situation to claim that this was error.
Upon the whole case we think that the judgment and order were correct and should be affirmed, with costs.
Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred.
Judgment affirmed, with costs.