Christman v. Martin , 1898 Pa. Super. LEXIS 342 ( 1898 )

Opinion by

Orlady, J.,

Pending a dispute as to the defendant’s liability to pay for a carload of lumber, after objection had been made that the lumber “ is unfit for use, is soaking wet and of inferior quality, is not what we ordered from you,” the plaintiff replied: “ If it is not up to the grade the shipper must make matters right, these things are very perplexing. If you have not unloaded car, please do so, so as to save damage, make a tally of the load, as per your letter and Mr. R. will call to see the lumber soon; ” and by another letter: “ The situation is a regular poser. I want to do what is right in the matter, but must as far as possible protect my shipper. To be honest, I do not think that we can arrive at any compromise that will let either you or us, or our shipper out whole, in other words — all three parties in this matter are bound to lose. Now I suggest that you in order to get this thing started, make us a proposition that is within the bounds of reason.” The defendant sent two acceptances of $200 each at sixty and ninety days, and wrote in a distinct form across the obligations: “ Settlement in full to date,” and by tbe letter inclosing them he stated.: “If satisfactory, well and good; and if not, we will await further developments.” The plaintiff acknowledged receipt of the drafts and notified the defendant, “ I wish it distinctly understood that I accept them only for the face of them, viz, $400, which leaves the balance as above $115.97 still due for which I shall expect your remittance by return mail.” The following day the defendant requested the return of the acceptances by saying: “ If you refuse to accept same for full settlement to date as stated, you will return the notes or acceptances at once, as it was so understood, and your representative when here was so instructed.” The defendant retained the acceptances and applied the proceeds as a credit on the account.

The transaction was the only one between the parties, and this suit was brought to recover the balance as claimed which resulted in a verdict for the plaintiff under the direction of the court. On the trial the defendant offered to prove that the lumber shipped by the plaintiff was not as to dryness of the kind or condition, as ordered; that the plaintiff’s representative admitted its inferior quality after an examination of it, and that the offer to pay the $400 in full settlement was accepted by the plaintiff before the drafts were sent; which offer was excluded under an objection, for the reason that the lumber had been used by the defendant and had not been returned.

It is true that the defendant received and used the lumber, but he was not under obligation to accept any quality of lumber except that for which he had contracted, and had a right to decline to pay for lower grades: Holt v. Pie, 120 Pa. 425. He was not estopped by an acceptance of the lumber under the circumstances. If the contract was substantially performed so that the proportionate extent of failure was comparatively small, the defendant was justified in accepting the carload of lumber and was entitled to have credit for the part that was deficient. Only by opening up the carload could the defects be discovered unless the defense would be to the whole load, and in this case it was not so claimed. The controversy was as to the defective lumber, and this dispute was based upon facts which were admitted. The plaintiff invited a proposition within the bounds of reason to adjust a difference in which he felt that each party concerned was bound to lose, and it was proper to show that after inspection of the lumber by his representative, an agreement was made by which the plaintiff was to accept in full settlement the amount represented by the drafts, and 'that it was paid under the circumstances stated in the offer. The offer tended to support the defense, and was proper for the consideration of the jury: Pratt v. Jewelry Co., 69 Pa. 53. The whole case was not contained in the offer but'an important part of it was so stated. The correspondence plainly indicated the intent of the defendant, and if the drafts were used in a different way or for a different purpose than the one for which they were sent, it was proper to prove the real facts. The party paying money has the right to direct its appropriation. The refusal to return the drafts after the explicit direction as to their application ought to be regarded as an election to accept them for the purpose for which they were offered: Gas Co. v. Johnson, 123 Pa. 576.

This is not a case of an agreement to accept a smaller sum in satisfaction of a larger one presently due (Brockley v. Brockley, 122 Pa. 1), or in which the actual acceptance of such smaller sum is not a good discharge of the debt even as accord and satisfaction: Bank v. Huston, 11 W. N. C. 389; Martin v. Franz, 127 Pa. 389.

The dispute was as to the value of the carload of lumber. The price at which it was invoiced, $603.69, could not be said to be the presently due value as claimed by the plaintiff in view of his letter of March 12, 1896, in which he says : “ The situation is a regular poser. To be honest, I do not think that we can arrive at any compromise that will let either you, or us, or our shipper out whole.”

The defendant alleged it to be of much less value. The offers were to show that this controversy as to the value was settled and adjusted in fixing the amount of $100 as the full value of the carload of lumber. If this was done, the payment of that sum was the payment of the then value of the property, and the defendant is not to be prejudiced by the plaintiff’s unauthorized use of the money so paid, in crediting it to the account instead of discharging it.

The assignments of error are sustained, the judgment is reversed, and a venire facias de novo is awarded.