[No. 8181.

Department Two.

January 8, 1910.]

#### Clarence E. Maynard, *Appellant,*v. First Bank of Colton, Respondent.1

Compromise and Settlement — Mistake—Evidence—Sufficiency. A finding that there was no mistake or fraud in a compromise and settlement is justified by the evidence, where after action brought upon an account extending over a period of years, the parties got together, the accounts were gone over, item by item, and $3,550 was finally paid in full satisfaction of claims amounting to $4,743.85; and it appears that the claim of mistake related to a note of $700 and interest which had been twice charged in the account, which double charge was admitted, but there was evidence that a credit was given for the double charge prior to the settlement, and the note was one of the disputed items in the settlement.

Appeal from a judgment of the superior court for Whitman county, Chadwick, J., entered March 81, 1908, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action on contract.

Affirmed.

*Thomas Neill,*for appellant.

*Hanna*& *Harma,*for respondent.

1

 Reported in 106 Pac. 182.

Mount, J.

The appellant brought this action to recover the sum of $912, alleged to be owing to him from the respondent. The cause was tried to the court without a jury. At the close of all the evidence, the trial court was of the opinion that the amount in controversy had been adjusted by accord and satisfaction prior to the bringing of the action, and for that reason dismissed the case. The plaintiff has appealed from that order.

It appears that, in the year 1905, the respondent brought an action against the appellant, alleging that appellant was indebted to the respondent on three causes of action, in the amount of $4,748.85, besides interest. The cause never came *487to trial because the parties got together, and the accounts, which had extended over a period of years, were submitted item by item, and were finally settled, the appellant paying to the respondent the sum of $3,550 in full satisfaction of the account. After this settlement was made, the appellant was informed by a former employee of the bank that a note of $700 and interest had been twice charged to his account, and by the settlement was paid twice. The appellant claimed that he had not been informed and did not know of this fact at the time of the settlement. The fact of the settlement is admitted, and the fact that the note was charged twice to appellant’s account is also admitted. But there is evidence that a credit was given for the double charge prior to the settlement. At the time of the settlement, the full statement of all of the items of appellant’s account was submitted to him, and among these items appeared this note with interest. Some of the items were disputed and some were not. This note was among the undisputed items. The parties finally agreed upon a compromise of the whole dispute for a sum much less than the respondent’s Original claim. This settlement is of course conclusive, unless it can be set aside for mistake or fraud. In order to meet the evidence that the double charge had been corrected prior to the settlement, as it appeared on the books of the respondent, the appellant testified that he had made a deposit of cash of the same amount as the note on the same day that the note was credited back to his account, and that, instead of entering the cash deposited, the credit was entered as of the note. The trial court, however, was not convinced that such was the fact, and concluded that the evidence was not sufficient to justify a finding of mistake or fraud, and therefore dismissed the case, and we think the trial court was justified therein.

The judgment must therefore be affirmed, and it is so ordered.

Rudkin, C. J., Crow, Parker, and Dunbar, JJ., concur.