The facts are stated in the opinion of the Court. The plaintiff delivered certain crossties upon defendant's right of way at an agreed price. Subsequently the defendant reduced the price of ties, and thereafter inspected and accepted plaintiff's ties and offered to pay the reduced price. This the plaintiff declined to accept. There was no dispute as to the number of ties. *Page 504
The plaintiff, being indebted to the bank, told the defendant to send a statement and certificate of the amount due him to said bank. The account, when rendered, was for the proper number of ties, but calculated at the reduced rate and totaling $316.20, being $73 less than the amount due on the basis of the contract price. The plaintiff notified both the defendant and the bank that he would accept said sum only in part payment. The bank receipted in full "of above account."
The defendant introduced no evidence that the plaintiff ever intended or agreed to accept less than the contract price. The evidence is plenary and uncontradicted that he did not. The account rendered was (523) no more than an admission by the defendant that it owed plaintiff $316.20. The bank's receipt was only for the "above account,"i. e., for the amount due upon that admission. It did not purport to be in full of plaintiff's demands, and had it been it would have been unauthorized. The defendant showed no such authority, and, indeed, the evidence of the bank and of the plaintiff was that the plaintiff refused to authorize the acceptance of the $316.20, except as part payment.
This case is totally different from Kerr v. Sanders, 122 N.C. 635, and the cases cited under it in the annotated edition. There a check was sent the creditor, reciting in the face of it "in full for services." This the defendant endorsed and cashed, thereby accepting it as full settlement. A later case is Armstrong v. London, 149 N.C. 435.
No error.