Two questions arise in this case, one whether or not there was an account duly stated between the plaintiff and the defendant in which it was agreed and determined between them that there was due, owing and payable to the plaintiff by the defendant the sum of‘$36 6,34,- and second, whether there was'a settlement and compromise by the defendant with the plaintiff. ■ Both by the.answer as well as the evidence, the defendant denies that there was an account stated. • • '
.This being a question of fact, we think should have been left to. the jury, and the court was, therefore, in error in directing a verdict.
' It was claimed by the appellant that nothing was said as to the amount due, but that he proposed to pay $20.0 in full settlement of amount due to the plaintiff, which is not disputed as being much larger than this $200.
No time or manner of payment was fixed, and only $5.0 .was paid before the commencement .of- this Action.
The other $150 was paid after the action.was commenced, because the defendant admitted this amount was due- and as a condition imposed by .the court in the opening of the defendant’s default and permitting .him to defend it was paid.
There must be accord and satisfaction and such' must be advantageous to the creditor. '
This was not the case'here.
*359What the defendant may have donfe with some of his creditors is no consideration for this plaintiff accepting a less sum than was really due her, she not being a party to any agreement with such other creditors. Of course, all this is upon the . theory that the claim is undisputed. Miller v. Coates, 66 N. Y. 609, 610.
Payment of a less sum of money .than the whole debt, without á release, was no satisfaction" of the respondent’s claim, the amount of the claim not being in dispute.
Where, upon the payment of an undisputed account, the creditor gives a receipt" in full, he is not concluded thereby from recovering the balance, although the receipt Was given with knowledge and there was ho error or fraud.
For the reason stated, that the question of fact which was taken from the jury should have been submitted to them, judgment must be reversed and a new trial granted, With costs to the appellant to abide the event. "
Fitzsimons, J., concurs.
Judgment reversed and new trial granted, with costs to appellant to abide event.