(concurring):
I concur in the opinion of Mr. Justice Houghton in so far as he directs a reversal of the judgment and for the reasons stated by him. I do.not, however, agree with him that the court properly charged the'jury “that anraccord and satisfaction wasnot proven.” The. answer was amended at the trial, and an accord and satisfaction was pleaded as a defense. The propriety of the amendment is not presented on this appeal. When the defendant sent the plaintiff the two checks in question' he notified him that the same were in full payment. The plaintiff was then bound to promptly return the checks, or else accept them upon the conditions imposed. It was for the jury to say whether he did not, by retaining the checks the length of time he did, intend to accept them iri full payment of his claims.
I am of the opinion that the court erred in holding, as matter of law,, that the defense of accord and satisfaction was not proved.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.