
    13658.
    John Deere Plow Company v. Anderson.
    Decided February 9, 1923.
    Complaint; from city court of Albany — Judge Clayton Jones. May 5, 1922.
   Stephens, J.

1. This being a suit upon a promissory note where the defendant pleaded payment by way of an accord and satisfaction, and there being an issue of fact as to whether a certain amount, paid by the defendant to the. plaintiff under an agreement in full settlement of certain promissory notes of the defendant held by the plaintiff, included the note sued on, a verdict for the defendant was authorized.

2. The court having charged the jury that the plaintiff could not recover if the proposal of settlement made by the defendant to the plaintiff included the note sued on, and if the money offered accompanying the proposal was accepted by the plaintiff, the charge was not error as failing to instruct the jury that the plaintiff must have had actual knowledge that the payment was tendered by the defendant in full settlement of the note sued on, it being conclusive that the plaintiff, upon the receipt of the defendant’s proposal, acquired knowledge of its contents.

3. Where the issue to be determined is whether or not there exists a contract made as a result of an offer to compromise, such offer to compromise is relevant and material. The rule that an offer of compromise is irrelevant or inadmissible to establish an admission of liability is not here applicable.

4. Where the judge in his charge to the jury undertakes to state the contentions of a party litigant by alleging them categorically, following the statement that the party “ alleges that,” a statement contained in such contentions is not necessarily an expression of opinion upon the facts because the court does not in immediate connection therewith repeat that the party alleges the same. It follows, therefore, that the excerpt from the charge complained of in the 5th ground of the motion for a new trial is not subject to the exception that it contains an expression of opinion upon what has been proved.

5. The charge of the court was fairly adjusted to the issues made by the pleadings and the evidence, and was not subject to any of the exceptions thereto contained in the plaintiff’s motion for a new trial.

Judgment affirmed.

Jenkins, P. J., mid Bell, J., ooneur.

George B. Cowart, II. A. Beacoelc, for plaintiff.

B. II. Ferrell, for defendant.  