Question.—A makes a shipment to a customer in another State and several days after he receives information that leads him to believe it prudent to hold up the shipment and have the goods reconsigned to himself. He immediately takes the matter up with the initial carriers with the request that they take immediate steps to stop the shipment in transit and have same reconsigned to himself, all charges to follow. In the event that the initial carrier fails to take prompt action and it develops that the goods are delivered after the initial carrier has been notified not to deliver them, thereby causing A the loss of the value of the shipment, cannot A hold the initial carrier responsible for the value of the shipment?
Reply: When goods are sold on credit and the buyer becomes insolvent or gives proof of insolvency, before the goods are delivered to him, it is the right of the seller to take them back into his own possession and refuse delivery altogether; this is because one who buys on credit is bound by an implied contract that he will keep his credit good and be able to pay for the goods when the due date arrives. When the carrier is called upon to return the goods to the seller he must act at his own peril. If he does return them and the buyer was not insolvent, the carrier must answer to the buyer for his damages. On the other hand, if the carrier fails to return the goods and the seller can show that the buyer was insolvent the carrier must respond to the seller for the value of the goods or for such part of it as the seller finally loses. The seller, in the case under consideration, must first establish the fact that he had a right, within these rules, to stop the goods. Then if he can show also that this might have been done except for negligence or delay on the part of the initial carrier, he can hold that carrier liable for his loss.
Opinion No. 79.
ACCORD AND SATISFACTION.
Frequently inquiries are sent us inquiring as to the advisability of accepting checks marked “In full settlement of account to date,” etc. The situation is not the same in all States but usually the questions are covered in the doctrine of accord and satisfaction explained as follows:
If an account between two parties be actively and openly in dispute and the debtor sends to his creditor a remittance for a specific sum and states that such sum is offered in full settlement, and if such sum be accepted by the creditor he is bound thereby and cannot thereafter recover anything on the account from his debtor. The mere sending of a remittance, however, for an amount less than the amount due, where there is no dispute between the parties, does not affect the right of the creditor to bring suit for the balance due even though it is stated in the letter accompanying the remittance that said remittance is in full settlement.
The question as to whether a dispute is open or active can usually be easily determined. If the seller and buyer have been in correspondence regarding a dispute, that determines its activity, and if after such correspondence a remittance is made marked “In full settlement,” etc., the acceptance is binding.
Opinion No. 80.
ACCEPTANCE IN NEW JERSEY MAY BE AFFECTED BY STATUTE.
Our attention has been called to a law passed by the New Jersey Legislature in 1907, from which the following is quoted: