I am- of opinion that this case should have been submitted to the jury. At the close of the plaintiff’s case the defendant moved to dismiss the complaint on the ground, among others, that the defense of accord and satisfaction had been established. The motion was denied and an exception taken. The defendant then rested its case and the plaintiff moved for the direction of a verdict for the amount claimed, with interest. This motion was granted and the defendant excepted. The complaint alleged that the plaintiff died on the 23d day of July, 1900, holding a certificate of membership in the defendant by virtue of which she became entitled to $1,046.64 ; .that $796.64 had been paid on account and that the balance of $250.was due and payable. The answer alleged that the member committed suicide, and in consequence thereof, by virtue of an express provision of the contract, only seventy-five per cent, together with some additional assessments aggregating the amount already paid, became payable on the certificate, and that the plaintiff accepted the same in full accord and satisfaction of her *78claim. The plaintiff testified that at the time she received the payment, which- the defendant claims was in full settlement of the claim,.'she signed a receipt indorsed on the benefit certificate reciting that she received “the sum of Seven Hundred and 'ninety-six 64/100 Dollars in full under this certificate. But I accept the above amount under protest.” It does not appear whether she had' possession of the benefit certificate at the time of her husband’s death and surrendered it to the defendant, in which case it is clear that she could not have maintained this action (Larkin v. Hardenbrook, 90 N. Y. 333; Simons v. American Legion of Honor, 178 id. 263), but the inference is that when she -received the payment the benefit, certificate, with' Her indorsement thereon,, was-left with the defendant, for the defendant produced -it 'upon the trial- She testified on cross-examination that the secretary of the subordinate lodge of the. defendant 'to which her husband belonged, who. gave her the draft and exacted as a condition -that she sign'this receipt, told her before he delivered the draft that owing to the fact that her husband -committed suicide the defendant “ wotild only pay the sum that is named in this.draft.” She further testified that she signed the draft Under protest and “ was- no.t satisfied with' the money,” and, further, “ He gave itie the draft and put it on the table. I said‘that is not light.- I-am not satisfied.’ I only took' it under protest. Of course,.! wanted the $250 more. He said, that is my business, what I do.- I -took the draft and gave a ■ receipt;.” that he “said that was all the' Supreme Lodge would pay. I took the draft and signed this receipt under protest; ” that after she got the -money she demanded the balance and it was refused; that Mr. Lacey, the defendant’s supreme secretary, then told her the defendant. “ would not pay any more money. I said I will go to court.” The draft Was on the supreme treasurer of- the defendant,, and directed him to pay to the order of the plaintiff $796.64, “being amount due under claim Hoi 808 and charge to Beneficiary Fund.” It was drawn by the supreme • director arid secretary.. The plaintiff indorsed the draft and collected the money.
If upon this evidence it could not -be said' as matter -of law that this constituted an accord and satisfaction, the case at least should have been submitted to the jury. The evidence, would fairly warrant the finding that the defendant made the payment upon the *79condition that it was in full settlement of the claim, and that the plaintiff, although claiming moré and protesting, did not reserve the right to bring an action for the balance. If the plaintiff was unwilling to accept the draft on the condition offered as shown by the form of receipt, viz., in full settlemenit of the claim, the defendant had the right to withhold payment. It was an unliquidated claim within the rule relating to accord" and satisfaction, the defendant conceding its liability in the amount for which the draft was given and the plaintiff claimed a greater liability. In these circumstances it is well settled that an acceptance of the amount which the defendant conceded was owing in full settlement of the claim constitutes an accord and satisfaction, and the plaintiff could not thereafter recover the balance of her claim on the theory that inasmuch as the defendant only paid the amount it concéded was due there was no consideration. (Nassoiy v. Tomlinson, 148 N. Y. 326; Jackson v. Volkening, 81 App. Div. 36, and cases cited; affd., 178 N. Y. 562.)
There is no evidence that the defendant interposed the claim that its liability was limited to seventy-five per cent in bad faith, and, therefore, even though the claim in that regard may have been erroneous either on the facts or law, or both, the settlement nevertheless constituted an accord and satisfaction. (Simons v. American Legion of Honor, 178 N. Y. 263, and cases supra)
The fact that the plaintiff indorsed on the receipt above her signature that she accepted the amount under protest did not vary the effect of the receipt and settlement. (Simons v. American Legion of Honor, supra)
I am of the opinion that the case of Komp v. Raymond (175 N. Y. 102) is not opposed to these views. There a check for the amount defendant conceded to be due was accepted and a receipt in full signed. The plaintiff offered to show that he accepted the money and signed the receipt upon the express parol agreement that if the defendant did not pay the balance claimed by the plaintiff he was to be at liberty to sue therefor, and the plaintiff also offered to' show that the defendant’s refusal to admit his liability for the full amount claimed was not in good faith. This evidence was excluded, and the Court of Appeals held that it should have been admitted upon the ground that the paper signed being a receipt *80merely and not embodying any agreement was subject to explanation, modification or contradiction by parol, and that if the defendant’s claim in reduction of the liability was not made in good faith the settlement was not binding.' . The case of Laroe v. Sugar Loaf Dairy Co. (180 N. Y. 367) is also clearly distinguishable. That was ah action for a balance due for milk delivered under- a contract. The- contract Was made by the secretary of the defendant. After receiving milk for a period the defendant' repudiated the contract as unauthorized and notified the plaintiffs that if they continued to deliver'milk it must be at-the price paid during the previous year before the contract was made, but the plaintiffs did hot acquiesce in this. They notified the defendant that they regarded the Contract' as valid and intended to deliver milk thereunder' and that if- the defendant paid less than the contract price it Would be credited on the. account, and they Would sue for the balance. After ■ this notice the defendant continued- to receive milk from the plaintiffs and from time to time rendered statements at the foot of which was “ to check in full.” The checks did not recite that they were in full payment.
The plaintiffs used the checks but gave no receipt. .It was held that this did not constitute-an accord and satisfaction and that the plaintiffs were entitled to recover according to contract. Here if the plaintiff had -refused to accept the draft in full settlement of the claim, and had asserted her intention of suing for the full amount of. the claim, or with the consent of the defendant’s officers had accepted the draft on the understanding that it. was to be without prejudice to her right to site for the balance, or had expressly reserved her right to sue for the balance, then'the receipt and the draft could be explained and-it would appear that there was not a final-settlement made. ■ She merely sighed the receipt and accepted the draft under protest, but gave no notice to the defendant that she intended to sue for the balance until after she received the draft when she demanded the'balance and stated that she would' bring an action. I -am-inclined to the view that, as matter of law on this evidence, the plaintiff accepted the draft on the terms offered by the defendant in full settlement of her claim, but certainly at most this Was a question for the jury and could not have been resolved against the defendant as matter of law.
Determination affirmed, with costs.