
    Henry Beckman v. Birchard, Bridge & Company.
    Filed June 3, 1896.
    No. 6606.
    1. Accord and Satisfaction: Acceptance of Money: Estoppel. A creditor who accepts money tendered by the debtor unconditionally does not by that act estop himself from maintaining an action to recover any further sum that may be due. Treat v. Price, 47 Neb., 875, distinguished.
    2. -: Evidence. Evidence examined, and held sufficient to sustain the verdict.
    Error from the district court of Antelope county. Tried below before Aleen, J.
    
      0. A. Williams, for plaintiff in error.
    
      Powers & Says, contra.
    
   Iryine, C.

Birchard, Bridge & Co. sold to Henry Beckman certain wheat in the possession of the former at Norfolk, estimated at from eight to ten thousand bushels, at seventy-one and three-fourths cents per bushel, the wheat to be delivered on board cars at Norfolk, Beckman being engaged in the milling business at Neligh. Tlys action was brought by Birchard, Bridge & Co. against Beckman to recover a portion of the purchase price. The controversy primarily relates to the amount of wheat delivered, Beckman claiming that he has paid in full for all delivered to him and Birchard, Bridge & Co. claiming that a greater amount was delivered than Beckman concedes. The trial resulted in a verdict for the plaintiffs for $265.30. Tbe defendant brings tbe case here, contending for a reversal upon one ground only, to-wit, that tbe verdict was not sustained by tbe evidence.

Tbe contract between tbe parties contained no provision whatever for ascertaining tbe amount of tbe grain. After six cars bad been delivered, a controversy having arisen as to tbe amount of their contents, Mr. Birchard visited Mr. Beckman’s agent at Neligh and bad some negotiations in regard to tbe matter. Tbe plaintiffs contend that no adjustment was made of tbe existing dispute, while tbe defendant contends that it was then agreed that tbe wheat already delivered should be paid for by defendant according to tbe result of bis own weighing. On this point tbe evidence is conflicting. In order to avoid future disputes it was, however, then agreed that tbe amount of tbe remaining wheat should be determined by tbe weight given by tbe railroad company. This attempt to provide a certain basis for tbe remainder of tbe transaction was unfortunately frustrated by tbe fact that for three of tbe remaining cars the railroad company gave different weights. As to these cars tbe bill of lading in each instance gave a greater weight than that given by tbe freight bill delivered to Beckman. Tbe plaintiffs then insisted that tbe weight was to be determined by that reported on tbe bill of lading, while tbe defendant insisted that tbe freight bill was to govern. Tbe evidence was again conflicting as to which of these weights tbe conference at Neligh determined should govern tbe transaction. Tbe conflict of the evidence upon these two points, as well as the conflict as to tbe actual weight of tbe grain, is such that tbe verdict cannot be disturbed. There was sufficient evidence to sustain tbe plaintiffs’ contention on both points. Tbe suit was begun at a time when, according to defendant’s own theory, he owed the plaintiffs $1,694.68. He employed Mr. O’Day, a lawyer of Neligh, to go to Norfolk to make a settlement. Mr. O’Day there tendered to the plaintiffs $1,694.68. This was accepted by tbe plaintiffs, and defendant now claims that their acceptance of the money operated a payment or an accord and satisfaction. Here, again, the evidence is conflicting as to the circumstances. Viewed in one light, it presents a case very much like that of Treat v. Price, 47 Neb., 875; but according to some of the witnesses the money was neither tendered nor accepted in satisfaction of the entire debt. It was tendered absolutely and unconditionally, and so accepted merely as a payment on account. The jury was justified by the evidence in accepting the latter theory of the facts. It is argued that even in that light the transaction amounted in law to an accord and satisfaction. This is not true. The very purpose of requiring a tender, in order to be available as such, to be unconditional, is that it shall not raise any implication that the debtor intended to cut off a claim beyond the sum tendered. In order to make the tender available it must be on such terms that the creditor may receive it without compromising his rights to recover more. (Tompkins v. Batie, 11 Neb., 147.) If the plaintiffs had refused to accept the money they would have been entitled to judgment therefor, but without interest after the time of the tender. Having accepted it they were still at liberty to prosecute the action for the purpose of recovering any further sum that might be due.

Judgment affirmed.  