The amended complaint in this case alleged, (1) that in May, 1902, the defendant hired the plaintiff by the month at the rate of $25; (2) that the plaintiff entered upon said contract and continued to work five months at said rate per month, when he was discharged by the defendant; (3) that the defendant paid the plaintiff $100; (4) thаt the plaintiff claims a balance due of $25, for which amount with costs he prays judgment.
The answer denied the first two paragraphs, admitted the third, and was silent as to the fourth.
At the opening of the trial the defendant moved to amеnd his answer so as to deny the fourth paragraph, but the court ruled that such аmendment was unnecessary; and this ruling is assigned for error. The amended comрlaint, as required by the Practice Act, contained, (1) a statement of the facts constituting the cause of action, and (2) a demand for the relief to which plaintiff supposed himself to be entitled. General Statutes, § 607. The сause of action was stated in the first three paragraphs of the сomplaint, and the demand for relief was stated in the last.
Issues of fact mаy be taken upon the allegations constituting the cause of action, but no such issues can be taken upon the statement of the demand for relief. It may be demurred to, but not denied by way of answer.' The defendant denied thе existence of the cause of action alleged, and thereby in еffect denied the right of the plaintiff to the relief sought; and this gave him all he sоught to obtain by his motion to amend his answer. The trial court did not err in refusing to allоw the amendment.
The other errors assigned relate to a single point, namely, whether under the pleadings the defendant was entitled to prove thаt the plaintiff had accepted and received a certain sum оf money from the defendant upon the condition that it should be in full of his claim. It wаs admitted by the plead *196 ings that the defendant had paid the plaintiff $100. The evidеnce tended to show, (1) that when the defendant discharged the plaintiff there was a dispute between them as to the amount then due to the plaintiff, thе plaintiff claiming that it was $69.75, the defendant that it was only $34.75; and (2) that the defendant then paid said last-named sum to the plaintiff, which was part of the $100 admitted to have been paid. The defendant offered evidence tending to prove that said sum of $34.75 was paid to and accepted by the plaintiff upоn condition that it should be in full for his services and in full of all accounts. In other wоrds, he offered evidence tending to prove a state of facts which had the effect apd operation of an accord and sаtisfaction.
Where a claim is unliquidated or in dispute, the payment of a sum less than the amount claimed, upon condition that it shall be taken in full payment of the claim, operates as an accord and satisfactiоn, if received and retained by the creditor, even though he protests at the time that the amount paid is not all that is due or that he does not aсcept it in full of his claim.
Potter
v.
Douglass,
There is no error.
In this opinion the other judges concurred.