O'CONOR v. PHILIPSEN et al.

(74 Hun, 68.) O’CONOR v. PHILIPSEN et al. (Supreme Court, General Term, Second Department. December 1, 1893.) Accord and Satisfaction—Settlement of Disputed Claim. The vendee of land claimed misrepresentation by the vendor as to the amount and quality of the land. The vendor agreed to take $40 in cash and $200 in notes in full satisfaction of the vendee’s bond, which was secured by a purchase-money mortgage for $680. The vendee paid the cash and gave the notes. The vendor delivered the bond with a written receipt of full payment. Friends of the vendor, who were present at the transaction, subsequently corroborated testimony of the vendee to a fair agreement to settle the claim by the cash and notes, but the vendor, who was illiterate, and had been drinking at such time, testified that he did not intend to release the whole claim. Seld, that there had been a settlement of a disputed claim, which was good and binding on both parties. Appeal from special term, Westchester county. Action by Christopher O’Conor against Oscar Edgar Philipsen and Emma Philipsen, his wife, and Susan Clist, to foreclose a purchase-money mortgage. Judgment for Defendants appeal. Reversed. Argued before BARNARD, P. J., and PRATT, J. Wilson Brown, for appellants. Thomas W. Butts, for respondent. [MAJORITY — BARNARD, P. J.] BARNARD, P. J. Patrick 'McCarty gave a deed of land to the defendant Philipsen. The description in the deed consisted of two pieces of land,—one of 25, and one of 14, acres. The consideration for the deed was $2,250. There was a mortgage of $800 on the property, and judgments against the grantor, which were liens on the land. Philipsen took subject to the mortgage, and also subject to the judgments, and gave the mortgage in question for $680. The sale was made for McCarty through one Sweeny, a real-estate broker. In April, 1891, McCarty agreed with Philip-sen to take two promissory notes for $100 each and $40 in cash for a full satisfaction of the bond accompanying the mortgage. The cash was paid and the notes given, and the bond was delivered to Philipsen, with á receipt, in writing, on it that the same was paid in full. The first note was paid subsequently, but when the second became due, and payment was tendered, it was refused, and this action brought by McCarty’s assignee, alleging that the settlement was procured by fraud. There is an entire failure of proof to show fraud in the settlement. The mortgagor, McCarty, was accompanied by his friends, one Wimbenny and Scanlon. They both testify to a fair agreement to settle the claim; that Philipsen claims misrepresentation as to the quantity of the land sold and as to its power to produce. It appears on all sides that the agreement stated the land to be over 100 acres; that the deeds did not give the real amount of land. It appeared that an actual survey developed an area of 58 or 59 acres only. The land is proven to be worth $25 to $35 an acre. The farm was bought for agricultural purposes, and the purchaser had the right to claim damages for this deficiency of 40 or more acres. Schumaker v. Mather, 133 N. Y. 590, 30 N. E. 755; Paine v. Upton, 87 N. Y. 327; Keenan v. Bird, 60 Hun, 175, 14 N. Y. Supp. 457. It was under this state of facts that the parties settled. A man may settle a disputed claim, and the settlement be good and bind both parties. Philipsen constantly claimed that he had been cheated, both in quality of the land and in the misrepresentation as to the amount of it. The settlement was good. Dunham v. Griswold, 100 N. Y. 224, 3 N. E. 76; Kromer v. Heim, 75 N. Y. 574; Babcock v. Bonnell, 80 N. Y. 244; Wilson v. Randall, 67 N. Y. 338; Brooks v. Moore, 67 Barb. 393; Beach v. Endress, 51 Barb. 570. The facts of the case differ ■entirely from the facts in cases where it is held that an agreement to pay a portion of an admitted debt in settlement of the entire claim is invalid. The case does not stand upon this principle, but ■on a principle held without deviation,—that, where there was actually a dispute as to the amount due from one party to another, the parties may settle the controversy for themselves. The judgment should be reversed, and a new trial granted; costs to abide -event. [CONCURRENCE — PRATT, J.,] PRATT, J., (concurring.) The bond and mortgage came due in December, 1888, and were for upwards of $600. In April, 1891, defendant paid the holder $48 in cash, and gave him two notes of $100, due in one and two years. Defendant claims that these were given in discharge of the mortgage, and the witnesses present •corroborated him in that respect. The fact that the interest then due was much less than $240 is also a circumstance in favor of defendant. On the other hand, the holder of the mortgage testifies that he did not understand that the mortgage was to be discharged, and did not intend to release the whole claim. As the holder of the mortgage was illiterate, not able even to write his own name, and also had been drinking considerably at the time ■of the negotiation, it may well be that all the parties intend to speak the exact truth. Very likely an intelligent person in full ■possession of his faculties would have understood from the discussion that defendant expected to extinguish the whole claim by the $240 in cash and notes. The weight of evidence seems to be that way. Judgment reversed, and new trial ordered; costs to abide the event.