CASES

ARGUED AND DETERMINED

IN THE

SUPERIOR COURT

OF THE

CITY OF NEW YORK,

AT GENERAL TERM.

GUSTAVUS BUNGE et al. plaintiffs, vs. GERHARD H. KOOP et al. defendants.

1. The payment and acceptance of a less sum in satisfaction of a greater one due does not discharge the debt, even when made under a parol agreement by the creditor to accept such sum in satisfaction, if the debtor would procure the loan of it from his friends, and they lent it to him on the faith of such agreement. BARBOUR, J. dissented.

2. A party, against whom a verdict is peremptorily directed to be found, is entitled to the construction of the evidence most favorable for him; and in determining the propriety of the direction, evidence in conflict with that in his favor, may be disregarded.

3. It would not be a "furtherance of justice," under the 172d section of the Code of Procedure, to disturb a verdict, perfectly proper upon the pleadings as they stand, in order to sustain a new defense, of which the plaintiff had no notice either before or at the trial, until after the evidence on both sides had closed. An amendment to warrant it would be a substantial change of the defense.

4. A notification by the sellers of bills of exchange, through the broker by whom the sale was effected, to the buyers, a day or two before the time they were

Bunge v. Koop.

bound to deliver them, that they could not complete their contract, and their subsequent ratification of that notice, by admitting their inability to the buyers, accompanied by a notice from the latter, that they would be obliged to buy other exchange and there would be a loss, amount to a waiver not only of any demand of the bills of exchange on the day fixed for their delivery, sufficient to entitle the plaintiffs to rescind the contract, but also of a tender of the price, so as to make the right of action of the plaintiffs complete. 5. Such a notification, ratification and notice would also operate as a determination of any election the sellers might have to deliver before a day specified, so as to make the contract performable at once and avoid any risk from a future rise in the price of exchange.

6. The buyer's right of action being thus complete, and the rate of damages determinable by the price of the exchange in question upon the day such notice was given, no subsequent agreement to pay or payment of, a less sum would discharge the whole claim.

7. Where there is no specific request to a judge to leave any particular question of fact to a jury, and he gives a general direction to find a verdict for either party, to which only a general exception is taken, the only questions, on a review of his decision, are, Whether the uncontroverted facts called for a decision in favor of the party against whom such verdict was directed? and Ought the verdict to be set aside as against evidence? If they are to be answered in the negative, the decision of the judge must be affirmed. Per JONES, J. (Before ROBERTSON, Ch. J., and BARBOUR and JONES, JJ.)

Heard June 6, 1866; decided December 31, 1866.

THIS was an action to recover damages for the non-delivery by the defendants of certain bills of exchange sold by them to the plaintiffs. After alleging the co-partnership of the plaintiffs and of the defendants, the complaint set out a sale by the latter to the former of the bills of exchange in question, deliverable at the option of the seller, on or before a specified day, (July 31, 1864,) which happened to be a Sunday. It averred the readiness of the plaintiffs to receive such bills, but that the defendants notified them of their inability to perform their contract. It then stated the value of such bills on the Saturday next before, and Monday next after, the day specified in their contract, and the whole amount of the difference between such value and the price mentioned in such contract, ($6400.) It further alleged the payment of a certain sum on account thereof, and demanded the balance. The answer alleged, by way of defense, that on or about the 30th day of July, 1864, the