— Aрpellant through mesne conveyances became the owner of what was commenced as a Carey Irrigation systеm and brought suit to foreclose because of nonpayment a water right contract issued by the original company to respondent’s assignor. Respondent denied that anything was due and unpaid on the contract and claimed overpayment оf $58.54, which appellant admitted to the extent of $20.73 as an offset against the amount claimed to be due. From judgment for respondent entered by the court after trial without a jury the appeal was taken.
The records of one of the intermediary companies introduced as exhibits by appellant showed that on the 15th of December, 1911, three instalments, aggregating $1,490.40, were duе and unpaid and the following notation appears after these three items:
572.00
“Paid 4/4/12 320.00 for these three pay’ts.”
320.00
1212.00
*260 On another similar exhibit was the following entry: “April 4, 1912. Rеc’d $1212 in full to date,” being opposite the third of the three items mentioned, and on another exhibit appears at the same place: “4/4/14 Pd. $1212.00 Accepted by Co. to date.”
Respondent Hargis testified that at the time this payment was made it was understood that it was to be in full payment of the $1,490.40 then due and further testified without objection that at the time this payment was so made a receipt was given to him from the then general manager of appellant’s predecessor in interest, for payment in full up *to that time but that the receipt had since been mislaid.
Appellant contends that a verbal agreement to reduce thе contract price, or to accept less than the amount actually due, in consideration of payments being mаde that were at the time past due, is void for want of consideration. Such no doubt may be the general rule and though there is some conflict in the authorities there is a well-recognized exception to the effect that where an agreement to discharge a debt by the payment of smaller sum than is due is fully executed, and such discharge is evidenced by a written receiрt for the lesser sum in full satisfaction of the’ greater, there is a valid and irrevocable discharge of the debt
(Dreyfus & Co. v. Roberts,
Appellant further urges that under the terms of a trust agreement given by the construction company tо the American Trust and Savings Bank of the city of Chicago, the construction company in making collections of payments on the settlers’ water contracts had no right to allow this discount. While the agreement only authorized the company to cоllect and remit to the trustee, there is evidence in the record showing that most of the water contracts were subject to rebate, and were rebated by the company, and there is evidence that the trustee knew and acquiesced in the сourse of conduct of the construction company as its collecting agent including the granting of the discount in question. While thе evidence is none too clear upon this point there is sufficient evidence to justify the finding of the court as to this feature.
Appellant also complains because this matter was not pleaded in the answer. The complaint alleged that certain payments had been made and that there was a certain balance due; the defendant admitted that the payments as claimed by appellant had been made, but denied that there was anything due. The action was for the breaсh of contract upon the failure to pay and the burden was on appellant to sustain this action as laid. Certain exhibits introduced by appellant for the purpose of showing payments made by respondent contained entries indicating that rеspondent had in fact paid more than appellant claimed; these exhibits and the entries on them therefore became as available to respondent as though a special plea to the effect shown by them had been interposed by him.
(Penwell v. Flickinger,
*262
The chief issue was as to payment. There was an express finding that all sums due under said contract had been whоlly paid and discharged, but appellant urges that the court should have found when water was first delivered. It does not appear, in the first place, that there was sufficient evidence upon which to make such finding, and, in the second place, in view of all the evidence, it does not appear that any finding thereon would have required the changing of any finding that was made. While the .findings were meagre and should have been more explicit and detailed, “findings of fact are to be liberally construed in suрport of the judgment” (F
ehr v. Haworth,
“A judgment will not be reversed for want of a finding by the lower court, unless it appears from the record that there was evidence befоre the court from which it was required to make a finding which would countervail its other findings.”
(Storey & Fawcett v. Nampa etc. Irr. Dist.,
Appellant further complains that a continuance was not granted to permit the attendance of a witness or the securing of his deposition. The showing in this conneсtion was in substance that it was impossible for the absent witness to attend, and what showing was made was similar to the showing in
Berlin Machine Works v. Dehlbom Lumber Co.,
We have carefully examined the evidence and while appellant advances many theories and many computations which supрort his views,' there are also computations which fairly support respondent’s contentions, and this matter being within the province of the trial court, the judgment is sustained, and it is so ordered. Costs awarded to respondent.
Petition for rehearing denied.