#### JESSE HARRIS v. G. C. KENNEDY.

(Filed 30 March, 1932.)

Compromise and Settlement A a — Acceptance, of check purporting to be in full settlement of disunited account discharges the debt.

Where a statement is sent of a disputed account showing a balance due in a certain amount accompanied by a check therefor purporting to be in full settlement, the payee by accepting the check and receiving the money effects a settlement and is bound thereby in the absence of fraud, etc.

Appeal by plaintiff from *Daniels, J.,*and a jury, at October Term, 1931, of OeaNge.

No error.

On 11 October, 1930, tbe defendant, G. 0. Kennedy, sent tbe plaintiff, Jesse Harris, a statement and a check for $33.30. Tbe following is a copy of tbe statement and check:

“Hillsboro, N. O., E. 2, 11 October, 1930.

Mr. Jesse Harris, Eougemont, N. O.

In account with G. 0. Kennedy.

Price of timber. $ 600.00

To check .! .$ 100.00

To check .. 100.00

To 15,591 ft. 4x4 oak at $20.00 per M. on tbe yard 311.82

Sawed 9,147 ft. at $6 per M. 54.88

33.30 Check to balance

$ 600.00

*488ChecK. No. 928.

Hillsboro, N. C., 11 October, 1930.

Tbe Bank of Orange.

Pay to tbe order of Jesse Harris $33.30

Tbirty-tbree and 30/100 dollars.

G. O. Kennedy.

By Mrs. G. O. K.”

Tbe check was endorsed by plaintiff and cashed by plaintiff at tbe Fidelity Bank of Durham, N. C., on 13 October, 1930, and paid by tbe Bank of Orange on 13 October, 1930.

Tbe court below charged tbe jury as follows: “The court charges you that if you find from tbe evidence, and by tbe greater weight, that on 9 October, 1930, tbe plaintiff, through bis counsel, demanded of tbe defendant a settlement of tbe account then existing between plaintiff and defendant, and that thereafter on 11 October, 1930, tbe defendant sent to tbe plaintiff a written statement of tbe account, showing a balance due by tbe defendant to tbe plaintiff of $33.30, and accompanying said statement sent a check payable to tbe plaintiff for tbe said sum of $33.30, and that tbe plaintiff received said check and statement, and cashed said check and received tbe money thereon, knowing that said check was sent to him by tbe defendant in full payment and settlement of the account as shown on said written statement furnished by tbe defendant, then, tbe court charges you that tbe acceptance of said check under such circumstances by said plaintiff would be in law a full settlement and payment of tbe account then existing between them, and a complete defense to this action, it would then be your duty to answer tbe issue Nothing.’ ” To tbe foregoing charge plaintiff excepted, assigned error and appealed to tbe Supreme Court.

Tbe issue submitted to tbe jury and their answer thereto were as follows : “In what amount, if any, is tbe defendant indebted to tbe plaintiff ? Answer : Nothing.”

*R. O. Everett for plaintiff.*

*Graham & Sawyer for defendant.*

ClabksoN, J.

We think tbe charge of tbe court below correct. There was a dispute between plaintiff and defendant. Tbe letter from defendant to plaintiff set forth what be owed plaintiff and enclosed check for $33.30, and in tbe letter be stated “check to balance.” Plaintiff cashed tbe check.

*489
      *Hardware Co. v. Farmers Federation,*195 N. C., 702, is a case on “all fours,” at p. 704 tbe law is stated as follows: “In *Ore Co. v. Powers,*130 N. C., 152, 41 S. E., 6, tbe debtor sent a check to a creditor by letter wbicb stated: *‘We*enclose you check for $3,210.46, which balances account with your good self.’ This Court upon such fact declared the law to be: ‘Having accepted the check with a statement in the letter that it was for balance in full and cashed the check, the plaintiff is bound thereby in the absence of evidence of fraud or other conduct on the part of the defendants to relieve the plaintiff from the effect of its acceptance of the check in full payment.’ *Thomas v. Gwyn,*131 N. C., 460, 42 S. E., 904; *Armstrong v. Lonon,*149 N. C., 434, 63 S. E., 1011; *Aydlett v. Brown,*153 N. C., 334, 69 S. E., 243.” In the judgment of the court below we find No error.