There are two questions raised by the plaintiff in error. The first is on the facts, it being claimed that the report of the re'feree and judgment of the district court are not binding upon this court; that, as all of the evidence introduced before the referee is in the record here, we may look into it as though we were trying the case de novo, and that upon doing so we will come to a conclusion different from that of the referee and trial court. Granting that the findings of the referee and their approval by the district court are not binding here, we have looked into the evidence enough to enable us to conclude that the findings are fully warranted thereby, and are such as meet with our approval.
The main contention in the case is that there was an accord upon, and a satisfaction of, the demands arising between the parties in this case; that inasmuch as the account submitted on the 10th day of March, 1898, struck what was denominated therein as a “balance,” and as the indorsement upon the draft indicated that it was for such “balance,” and as the letter accompanying the same contained the suggestion that a “balance” was therein remitted, as a matter of law Henderson could not accept such draft under these circumstances and afterward claim a further payment. An accord is an agreement, an adjustment, a settlement of former difficulties, and presupposes a difference, a disagreement, as to what is right. A satisfaction, in its legal significance in this connection, is a performance of the terms of the accord; if such terms require a payment of a sum of money, then that such payment has been made.
In this case there is no evidence of any disagreement
“To constitute an accord and satisfaction of a claim unliquidated and in dispute, it is necessary that the money should be offered in satisfaction of the claim, and the offer accompanied with such acts and declarations as amount to a condition that if the money is accepted it is to be in satisfaction, and such that the*199 party to whom it is offered is bound to; understand therefrom that if he takes it he takes it subject to such condition.”
In Pottlitzer et al. v. Wesson et al., 8 Ind. App. 472, 35 N. E. 1030, a debtor sent his check in payment of an account. It was held that this-did not necessarily imply that if the creditor accepted the check he must have understood that his accepting it was in full of his claim ; hence there was no accord and satisfaction thereby shown. In Perkins v. Headley, 49 Mo. App. 556, it was held :
“Where a controversy as to the amount of the indebtedness exists between a creditor and his debtor, and the debtor tenders to the creditor the amount which he claims is due on condition that the acceptance of it should discharge the entire demand, the acceptance will constitute an accord and satisfaction as a matter of law, since one who accepts a conditional tender assents to the condition.”
But it was held in .this case :
“The mere fact that the plaintiff received from defendants less than the amount of his claim in silence, and with knowledge that defendants claimed to be indebted to him only to the extent of the payment made, did not conclusively and as matter of law establish an accord and satisfaction.”
In Beckman v. Birchard, 48 Neb. 805, 67 N. W. 784, where a payment of money was made as a balance due and the claim made that this was an accord and satisfaction, it was held: “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.” In Kruger v. Greer, 56 N. Y. Supp. 1015, an attoi’ney wrote to his client: “Enclosed you will find a statement of account, my receipted bill for profes
“A sum of money paid and received will not operate as a full settlement although the payer so intended it, and would not have paid it if he had not understood that such would be its effect, but in reference to . which he made no such express condition, if the payee did not so understand it, and would not have received it upon such an understanding.” (See, also, 1 Cyc. 332.)
An accord and satisfaction is the result of an agreement between the parties, and, like all other agreements, must be consummated by a meeting of the minds of the parties, accompanied by a sufficient consideration. If the creditor is to be held to abate his claim against the debtor, it must be shown that he understood that he was doing so when he received the claimed consideration therefor. A simple tender of a “balance” as shown by an account tendered by the debtor does not carry with it an implication or conclusion that by such tender the debtor paid, or that the creditor agreed to receive, the same in full of the amount due, where there has been no prior disagreement or discussion as to what was actually due. Surely it cannot be claimed that such was the condition in the case at bar. It was shown in the evidence that the administrator had no knowledge of fees properly chargeable by attorneys in this state for services rendered, or that he even knew of the character
We are fully persuaded that in this case there was no accord and satisfaction, and that the defendant in error is entitled to recover the amount found due by the referee. The judgment of the district court will be affirmed.