Omaha daily bee., 1896-04-11
SUPREME COURT sYLLABI.

Treat against Price. Error from Douglas
county. Reversed and remanded. Opinion
by COMMISSIONS irvine.
The rule that when a certain sum Is due
from one to another the payment of a lesser
sum Is no discharge as TO the remainder,
Notwithstanding an agreement to that eff
feet, is founded upon the fact that the
later agreement is without consideration
Such rue does not apply where the amount
due is disputed or unllquidated.
2 The word 'liquidated," when used in
this connection, means that the amount due
has been ascertained and agreed upon BY
the parties, or is fixed by operation of law
3. The rule does not apply where there
Is a BONA fide dispute between the parties
as to the sum justly due.
4. The fact that the sum paid Is in such
case only the amount that the debtor con
cedes to be due, does not inyalidate the
settlement.
s. IL a consideration is accepted and a
condition made by the payment and receipt
in full satisfaction of the sum which the
debtor admits to be due, 1t is found in the
sum. thereby avoids the delay, expense and
labor Of an accounting, and avoids threat
ened litigation.
6. Where a certain sum or money Is tend
cred by a debtor to a creditor on the con
dition that he accept II in full satisfaction
of his demand, the sum due being in dispute,
the debtor must either refund the tender or
accept it as made subject, to the condition
if he accept IT, he accept the condition
also, Notwithstanding any protest ne may
T. A being indebted to b in an uncertain
mount, sent 10 the c bank the amount
which A conceded to be due, with instruc-
tons to pay the sum TO b. but only in full
settlement, and on his signing a receipt to
that effect. b., protesting that more, was
receipt, but caused the bank to send back
accompanying the receipt, "A letter. 6eclar-
ing that he only received the money on ac-
count. and not in settlement. Held, that
by receiving the money he had accepted
the condition on which II had was rendered
and that his protest awaited nothing.
s. Held further, that the terms OF the
receipt and the refusal of the bank TO pay
the money, except upon his signing 1t. was
notice to him that the bank had no
authority to pay it, except on the condition
that 1t should be received in full settle
ment.
9. An oblter dictum in conflict with some
of the foregoing statements, In Price
against Treats, 20 Neb. $50, dlsapproyed.
Omaha & II, V. r. Co, against Wright.
Error from Saunders county. Reversed and
An allegation of negligence in a pleading
il like one of fraud, a mere conclusion. The
facts from which the inference of negligence
arises must be pleaded.
2. II Is error to submit to the jury an issue
OF negligence not raised by a pleading of
specific facts.
8. 1t is the duty Of an engineer in charge
of a train to exercise such a lookout as Is
consistent with his other duties; to as
certain the presence OF distractions on the
track, and If such a precaution would have
revealed the presence OF stock In time 70
have avoided their injury by the use of
ordinary care, the railway company Is liable
for Injuries inflicted upon them; although
they were not actually seen until too ate
to avoid striking them and although they