
    Berdell et al. v. Bissell et al.
    1. Parties are always at' liberty to compromise and settle matters of dispute. When such a settlement is clearly ascertained to have been fairly made, courts will not disturb it.
    2. At common law accord and satisfaction might be given in evidence under the general issue, but under the code practice there is no-general issue.
    3. If a defendant desires to rely upon an accord and satisfaction he must. set it up as a def ense in his answer.
    A Where the record discloses that a fact, though not presented by the-pleadings, is treated as in issue, and evidence introduced touching it, without objection, and it is submitted to the jury, this court, will treat the objection to the pleadings as having been waived, and will examine the defense as though it had been specially pleaded.
    5. Where a party makes an offer of a certain sum to settle a claim, when the sum in controversy is open and unliquidated, and attaches-to his offer the condition that the same, if taken, must be received in full or in satisfaction of the claim, and the other party receives-the money, he takes it subject to the condition, and it will operate-as a full accord and satisfaction.
    6. Where the evidence is conflicting, and the question is fairly and property submitted to the jury, the .verdict will not be'disturbed-.-
    
      Appeal from District Court of Lake County.
    
    The facts are sufficiently stated in- the opinion. The plaintiffs, appellees, had a verdict and judgment for $4,000.
    
      Messrs. Markham, Patterson, Thomas and Campbell and Mr. Hugh Butler, for appellants.
    Mr. D. P. Dyer and Mr. L. O. Rockwell, with Messrs. J. B. Bissell, J. T. Marshall and Chas. Cavender, for appellees.
   Elbert, O. J.

There can be no question of the fact that the appellants Berdell and Witherell, defendants below, acted as the agents of the appellees in the purchase from Borden of his half interest in the New Discovery mine, nor of the law, that as agents, having taken the title to the half interest in their own names; they held the same in trust for the appellees.

Their claim to retain a sixteenth interest in the property,, and their refusal to convey to the appellees more than seven-sixteenths, were gross and flagrant violations of their duty as agents, and upon a proper bill a court of equity would have decreed the conveyance of the entire property to the appellees, and during the pendency of the action have restrained a conveyance to anyone else.

A party, however, instead of appealing to the courts for redress, is always at liberty to compromise and settle matters of dispute. When such a settlement is clearly ascertained to have been fairly made, courts will not disturb it, no matter how plain and indisputable the right to redress originally may have been.

It is contended by the appellants in this case that there was a controversy touching the purchase mentioned, and that they delivered, and the appellees accepted, a conveyance of seven-sixteenths of the mine in full satisfaction and settlement of their claim to the one-half interest purchased.

While the record is voluminous, the controversy is virtually narrowed to the one question: was there such a settlement ?

The point is made by the appellees that this issue is not presented by the pleadings.

The complaint alleges the purchase of the property by the appellants as agents of the appellees; that they held the title in trust for the appellees; that they refused to convey the one-sixteenth interest, and sold the same, and seek to recover the'proceeds of the sale as for money had and received to their use, etc.

The answer admits the purchase, but denies the agency trust, and any indebtedness.

These are the only issues presented by the pleadings, and on- the evidence they were rightfully found for the appellees.

At common law an accord and satisfaction might be given in evidence under the general issue in assumpsit and in actions on the case, but under the code practice there is no general issue.

If the defendants intended to rely upon an accord and satisfaction, they should have set it up as a defense in their answer.

Notwithstanding, however,'no such issue was presented by the pleadings, the record discloses the fact that the alleged settlement was treated as an issue in the case; evidence was introduced touching it without objection, and it was submitted to the jury by the instructions asked by the plaintiffs.

In view of these facts, we treat the objection to the pleadings as having been waived, and examine the defense . as though it had been specially pleaded.

At common law the replication to a plea of accord and satisfaction protested the delivery of the thing and traversed the acceptance of it in satisfaction. This is practically the issue here.

The appellees admit the delivery by the appellants of a ■ deed for seven-sixteenths of the mine, but deny that it was in full satisfaction and settlement of their claim.

Trimble testifies, in substance, that at the time of the alleged settlement, he stated to the appellants that he would receive the deed for the seven-sixteenths and leave the matter of the other sixteenth for future adjustment, and that the deed was delivered and accepted upon this understanding.

If such was the fact, then there was no settlement of the matter in dispute, namely, the sixteenth interest retained, but merely a closing up of the transaction so far as it was undisputed.

The appellants were at liberty to either accept or reject this proposition.' If they accepted it, there was no settlement; if, on the other hand, they rejected it, and insisted that the delivery of the deed was upon the condition that it should be in full settlement, and the appellees accepted. it, the acceptance operated as an accord and satisfaction, notwithstanding their protest to the contrary. “ When a party makes an offer of a certain sum to settle a claim, when the sum in controversy is open and unliquidated, and attaches to his offer the condition that the same, if taken at all, must be received in full or in satisfaction of the claim in dispute, and the other party receives the money, he takes it subject to the condition attached to it> and it will operate as a full accord and satisfaction, even though the party, at the time of receiving the money, declare that he will not receive it in that manner, but only in part satisfaction of his debt so far as it will extend.” McDaniels v. Bank, etc. 29 Vt. 230; Preston v. Grant, 34 Vt. 201; Bull v. Bull, 43 Conn. 455; Patten v. Douglass, 44 Conn. 541.

That the appellants delivered the deed upon the condition that it should be in full satisfaction, does not appear by any very satisfactory evidence.

The appellants do not testify that it was definitely so expressed, but say that it was so understood.

The evidence upon the part of the plaintiffs goes to prove the contrary. The evidence being conflicting, it was for the jury to say whether the delivery and acceptance of the deed was or was not upon the condition that it should be in full satisfaction of the claim of the appellees, and this issue they found for the appellees.

The fact upon which so much stress is laid, that the appellants at the time of the delivery of the deed insisted upon the surrender of their notes payable to Borden, and then in the possession of the appellees, is not regarded as raising a presumption of a settlement in full; certainly •not any conclusive presumption. The notes did not sustain any such relation to the matter in dispute as would involve such a result. A presumption of settlement of indebtedness arises from a surrender of the evidence of the indebtedness, but the notes here did not represent any indebtedness between the appellants and appellees. The action is not for a balance due on the surrendered notes, nor do we see that the.appellees had any right of action on them. They had taken them up in accordance with their agreement to do so, thus completing the payment of the purchase money. The appellees did not demand to be reimbursed their purchase money or any portion of it, but claimed, a conveyance of the one-sixteenth interest in dispute. How, then, did the surrender of the notes affect this claim, in nowise dependent •upon them or evidenced by them? The appellees did not dispute their obligation to pay the purchase money, and the surrender of the notes was in perfect harmony with the theory that the transaction was closed only so far as it was undisputed.

In any view, whatever implication could arise from a surrender of the notes, of an accord and satisfaction, it was competent for the appellees to rebut it by evidence showing a different understanding. If credence was givne to the testimony of Trimble, it clearly rebutted any such implication.

As we said before, the evidence touching the conditions of the delivery and acceptance of the deed was conflicting. The question having been properly and fairly submitted to the jury, and they having found for the appellees, there is no ground for disturbing the verdict.

The judgment of the court below is affirmed with costs.

Affirmed.  