#### Morgenthaler and another, Respondents, vs. Somers, imp., Appellant.

*October 4*

October *24, 1916.*

*Accord and satisfaction: Promise and performance: Evidence.*

1. Where, a claim based on contract being controverted, the parties agreed that upon payment of a certain sum in cash or upon the delivery of a bankable note for such sum by defendant the dispute should be settled, but thereafter the defendant refused to carry out such agreement, there was no accord and satisfaction and the settlement agreement was no defense to an action on the original claim.

2. Had the settlement agreement been such that plaintiff accepted the mere promise of defendant to pay a certain sum in full accord and satisfaction, then only an action on that promise could be maintained.

3. It was not error in such case to admit evidence of conversations between plaintiff and an agent who had acted for defendant in the transaction, relating either to what the settlement agreement was or to the question whether it had been executed.

Appeal from a judgment of the circuit court for Milwaukee county: W. J. TueNee, Circuit Judge.

*Affirmed.*

Action to recover the purchase price of $1,702.83 of certain crockery sold the defendant, together with: the cost of storage, insurance, and interest. The part of the answer material to the issues litigated is as follows:

“That on the 27th of July, 1914, plaintiffs made claims .against the defendant *Somers*and alleged in substance the facts alleged in the complaint as entitling them to money from the defendant as demanded in the complaint, and that the defendant denied justice of plaintiffs’ claim and objected thereto. That thereupon it was agreed between defendant and plaintiffs that the controversy should be settled and compromised upon the terms that plaintiffs should retain possession and title to the merchandise described in the complaint and defendant should pay plaintiffs one third of the amount of the plaintiffs’ demand for merchandise contained in the plaintiffs’ complaint and the sum demanded by the plaintiffs for *160storage and insurance upon tbe goods. That tbis agreement still remains in force and effect and that tbe defendant bas been at all times and still is ready and willing to pay tbe amount stipulated by tbe contract of compromise and- settlement.”

One H. B. Harvey acted as agent for tbe defendant *Somers*in tbe transaction.

Tbe jury found (1) that *E.*W. *Morgenthaler*and H. B. Harvey did on or about July 27, 1914, enter into an agreement by wbicb, upon tbe payment of tbe sum of about $600 in cash or upon tbe delivery of a bankable note for a like amount signed by *Charles W.*Somers, tbe parties to tbis case would settle tbe dispute between them; (2) that tbe defendant *Somers*through bis agent, Mr. II. B. Harvey, refused to carry out tbe agreement of settlement wbicb was made by *Mr. Morgenthaler*and Mr. Harvey on tbe 27th of July, 1914.

There being no dispute as to tbe correctness of tbe original invoice, storage, interest, and insurance, judgment on tbe verdict for $1,901.23 and costs was entered in favor of tbe plaintiffs and against the defendant *Somers.*As to the other defendants the complaint was dismissed with costs. *Somers*appealed.

Eor tbe appellant there was a brief by Quarles, *Spence &*Quarles, and oral argument by *Louis B. Montfort.*

For tbe respondents there was a brief by Doerfler, *Creen &*Bender, and oral argument by *Christian Doerfler.*

ViNJE, J.

In addition to tbe questions set out in tbe statement of facts tbe special verdict contained tbis unanswered question: “Did H. B. Harvey and *E. W.*Morgenthaler, on or about July 27, 1914, agree that, upon tbe promise that *Som-ers*would pay $600 in cash, tbe plaintiffs would settle their cause of action?” It will thus be seen that tbe issue as to whether tbe agreement was to accept tbe *promise*of *Somers'*to pay $600, or to accept that amount in cash or a bankable *161note signed by *Somers,*was squarely put to tbe jury and that tbey found, as contended by plaintiff, that tbe agreement was tbat $600 in cash should be paid or *Somers’s*bankable note for a like amount should be given in lieu of tbe original contract. Such finding is sustained by tbe evidence. Tbat being so, tbe original contract remained in force till tbe $600 was paid or tbe bankable note tendered. There must be both accord and satisfaction. 1 Corp. Jur. 567. Bouvier defines accord and satisfaction as “An agreement between two parties to give and accept something in satisfaction of a right of action which one has against tbe other, which when performed is a bar to all actions upon this account.” 1 Bouv. Law Diet. (Bawle’s 3d Eev.) 103. In this case tbe jury found tbe substituted agreement was unperformed — hence it constituted no satisfaction and no bar to an action founded upon tbe original contract. Had tbe jury found, as contended by defendant *Somers,*tbat plaintiffs accepted tbe mere *'promise*of *Somers*to pay $600 in full accord and satisfaction, then only an action upon such substituted agreement could be maintained.

Error is assigned because tbe court admitted conversations between plaintiff and Harvey subsequent to tbat of July 27, 1914. Harvey dealt with *Somers*at Cleveland and such conversations related either to Harvey’s refusal to pay or give a note signed by *Somers*or to other replies which Harvey received from *Somers*at Cleveland. We perceive no error in tbe reception of such evidence, as it related either to what such alleged compromise agreement was or whether or not it bad been executed.

*By the Court.*— Judgment affirmed.