GOODE, J.
(after stating the facts). — It was the contention of defendant’s counsel below, and is their con tention here, that acceptance of the cashier’s check under the circumstances stated, constituted an accord and satisfaction and barred a recovery by plaintiffs of the balance alleged to be owing to them. The issue of whether there had been an accord and satisfaction was submitted to the jury by the court below in instructions and found in plaintiffs’ favor. But it is insisted by defendant’s counsel that, as all the facts on which the defense of accord and satisfaction depended, were in writing, there was no issue for the jury;' but the effect of what was done amounted in law to an accord and satisfaction. We agree with counsel for plaintiffs the burden was on defendants to make, good this defense; but the point to be decided is whether or not the evidence conclusively established the defense. It is said for- the plaintiffs it did not; because, there was no proof the draft for $370.35 was either tendered by defendant or accepted by plaintiffs in full settlement of the account. It will be observed the letter of Kinealy & Kinealy inclosing the draft, did not say it was *535sent as payment in full of plaintiffs’ demand against defendant, but that it was in payment of the balance shown by defendant’s books to be due plaintiffs as per the statement inclosed. Standing alone that letter would by no means be conclusive that the check was tendered on the condition it must be accepted by plaintiffs in full payment or not accepted at all; and we might even go further and say the letter by itself would hardly justify the inference of a tender on this condition. But the letter must be taken in connection with the statement or statements to which it referred and read in the light of what previously had transpired between the parties. We must determine whether the correspondence and documents permit no inference save that the check was tendered in full payment of the disputed 'demand and plaintiffs knew it was. If that is the effect of them, the cashing of the check constituted, an accord and satisfaction which bars recovery, notwithstanding plaintiffs’ protest that they would not take the check in full payment, but were willing to give defendants credit for the amount of it on the account. [Pollman Coal Co. v. St. Louis, 145 Mo. 651, 659, 47 S. W. 563.] The question is often extremely close, as to whether the tender by a debtor of less than the amount claimed by his creditor, is couched in such language or made under such circumstances, that the creditor must have known the tender was on the condition that it be accepted in full payment, so an acceptance would be tantamount to assenting to the debtor’s terms of settlement and work an accord and satisfaction; which is really an agreement to accept in satisfaction of a disputed or unliquidated demand, something different from what was claimed. The dispute between these parties was evidently in good faith on both sides and not a mere attempt by defendant to evade payment of a known liability. Hence, there is present the first condition essential to a valid compromise. [Pollman Coal Co. v. St. Louis, supra; 1 Cyc. *536367.] There is no difficulty when the parties formally agree; but when the accord and satisfaction is to be deduced, as in the present instance, partly from conduct, there is often much difficulty. This is especially so when it is argued there is no room for a jury issue. Tt is argued for plaintiffs that the letter of the attorneys did not say the draft was sent in full payment. No doubt in many instances the presence or absence of such an expression is a controlling fact. But it is not absolutely necessary, in order that an accord and satisfaction may arise, for the debtor to declare, in connection with his tender, it is meant to be in full payment. Circumstances may shOAV as conclusively as language, this was meant and that the parties so understood the matter. [Perkins v. Headley, 49 Mo. App. 556, 562.] The opinion in that case correctly states the laAV in regard to the present case, AA'hen it says that if there is a controversy between a creditor and debtor as to the amount due, and the debtor tenders the amount which he claims to be due, but tenders it on the condition that the creditor accept it in payment of the full demand and the creditor does accept it, this will be a full satisfaction as a conclusion of laAV; the principle being that one Avho accepts a conditional tender assents to the condition; that he cannot take the money and reject the terms on which it is tendered, if the party making the tender announces to him he will not pay on any other condition. Though to our minds the evidence in the present cause is cogent in favor of the conclusion that the tender was in settlement of the dispute and Avas so understood by plaintiffs, yet we do not deem this so absolutely clear we can declare no other inference could fairly be drawn. The matter had been placed by defendant in the hands of attorneys who wrote the letter, and there Avas no express statement that the tender was in full payment. The inference may be deduced that it was a tender of Avhat defendant admitted to be *537due, so that in case a law suit followed, plaintiffs would be thrown into the costs if they did not recover more. Additional strength is given to this view by plaintiffs’ letter in reply, .which might be interpreted as meaning they were surprised that defendant had concluded to make a payment and, were not afraid of defendant’s solvency or fairness, but expected it would pay the balance claimed in time. Moreover, plaintiffs refused to take the check in full payment, but said they were willing to credit the amount of it on the account. It was not shown that defendant objected to this being done. To meet such a proposal with silence and then follow with a claim of settlement, is a policy not to be encouraged; as it would tend to entrap creditors into an accord and satisfaction when none was intended. In Potter v. Douglas, 44 Conn. 541 (a case cited and approved in St. Jos. School v. Hull, 72 Mo. App. 403), it was said there was a material difference between receiving money duly tendered and receiving it when offered in full of an unliquidated claim. In the one case there is no condition attending the tender, and in the other there is a condition which the party to whom the money is offered must comply with or reject the money. In the one case the money may be accepted and the creditor sue for more, if more is due him, but in the other case the offer being in full of the claim, if the money is received, the law regards it as in full and the party can recover no more. This reasoning, of course, applies as well to a disputed claim on account as to one for unliquidated damages. If a debtor who pays a less sum than is claimed by his creditor, wishes to put the latter to his election of accepting the amount paid in Bill satisfaction or rejecting it, he must express his proposal in terms so plain that a court can 'declare there was an accord and satisfaction. And a court might do this even though the intention to offer in full payment was not expressed in clear words, if the facts pointed unmistakably to such *538an intention. But in most such instances the question of what the debtor intended and of how the creditor was bound to understand him, would be one of fact for the jury; and by the weight of authority this would be so under the facts of the present case. As already indicated, the silence of a debtor after he is notified the creditor will not accept the sum proffered in full payment but is willing to give credit for it, is a circumstance to be considered in determining whether or not an accord and satisfaction occurred; and courts have held that it does not occur because the minds of the parties did not meet in an agreement that the demand should be satisfied by the payment. [Miller v. Holden, 18 Vt. 337.] So in Gassett v. Andover, 21 Vt. 342, it appeared that after suit was brought, the defendant had tendered a sum in full of all the plaintiff’s demands, that the latter received the sum, protesting it was not enough, but talcing it and saying he would place it to the defendant’s credit. It was not shown the defendant expressed any dissent from the plaintiff’s proposal and the court held it might be inferred he assented to it. In Preston v. Grant, 34 Vt. 201, the payment was accompanied by a statement that the amount was tendered as the balance due on the notes in dispute. The attorney of the bank which held the notes, took the amount, saying he would take it to the bank “and they might do as they were a mind to.” The amount was afterwards indorsed on the note. It was held the words of the debtor should be construed to mean, that he offered to pay what he admitted to be due, but did not offer the payment on condition that, if accepted, it should be in full satisfaction of the debt, gtill more apposite is the case of Pottlitser v. Wesson, 8 Ind. App. 472. A carload of bananas was purchased and afterwards payment was refused on the ground the fruit was not of the quality sold. As the seller refused to take the bananas back, the purchasers sold them for the seller’s credit and *539transmitted the proceeds. The draft was accompanied by the following letter and invoice:
“(Letter) : ‘Gentlemen — Enclosed you will find our check on Hamilton National Bank in settlement for car of bananas shipped here and held here subject to your order, which we have sold for your account.’
“(Invoice, omitting figures) : ‘Sirs — We herewith hand you account sales of 550 bunches bananas received May 19, 1891, and'enclose you check for $550.70, net proceeds of same. We trust the same will prove satisfactory and to hear from you again. We remain, etc.”
The seller received the check and wrote the buyers it would place the amount to their credit and had put the account in the hands of a collection agency, whose attorney would see them about the balance due. No reply was made to this letter. The court, after reviewing several cases, held the letter stating the check was transmitted in settlement for the car of bananas, did not necessarily attach the condition that, if the draft was accepted it must be in fall payment. In Tompkins v. Hill, 145 Mass. 379, the facts and the decision thereon will appear from this excerpt from the opinion:
“The plaintiff had a claim against the defendant for one-third of the net profits of an enterprise in which they were jointly engaged. He sent a letter requesting the defendant to render an account. The defendant, in reply, sent a letter enclosing an account, in which he credited the plaintiff Avith one-third of the profits and charged him with an item of $260, claimed to be due for the defendant’s services, and also enclosing a check for the balance of the account thus stated. The plaintiff credited the check to the defendant on account, but he did not agree to accept it in satisfaction of his claim. On the contrary, he forthwith demanded payment of the said amount of $260, of the defendant, and, upon his refusal to pay at once, brought this suit. The case stands, in legal effect, the same as if the defendant had *540presented Ms-account and check in a personal interview, and the plaintiff had refused to agree to the account, or to accept the check in full satisfaction. It shows no agreement to compromise, and no accord and satisfaction; and the plaintiff is entitled to recover the balance due him.”
To the same effect is Curran v. Rummell, 118 Mass. 482. Rather opposed to those authorities is the decision in Hills v. Prank, 53 Hun 392. Every case to which we have been cited in this state in which it was held an accord and satisfaction arose from the acceptance by a creditor of a smaller sum than he claimed, contained the fact that the payment was offered in full satisfaction or discharge of the demand. [Pollman Coal Co. v. St. Louis, supra; McCormick v. St. Louis, 166 Mo. 315, 335, 65 S. W. 1038; St. Jos. School Board v. Hull, 72 Mo. App. 473; Adams v. Helm, 55 Mo. 468; Andrews v. Contracting Co., 100 Mo. App. 599, 75 S. W. 178.] We hold the issue of whether there had been an accord and satisfaction -was properly submitted to the jury.
This disposes of the chief assignment of error, although the rulings on the requests for instructions are all challenged. We have examined these criticisms but think the case was well instructed. The evidence was very conflicting as to whether the kraut was of the product of 1903, when it spoiled, and who was to blame for its condition when opened, and these issues were for the jury.
The judgment is affirmed.
All concur.