Dissenting Opinion by
Keller, J.:I could concur with everything that has been so well and forcibly said in the opinion of the court in this case, if the defendants had admittedly owed the plaintiff $200 on the bill for $504, presented them by the plaintiff’s agent; but no liability was admitted. The defendants claimed certain set-offs to the bill as presented and set up a counterclaim growing out of an alleged breach of contract in excess of the whole amount of the bill. Rather than have a lawsuit and incur the expense necessarily incident thereto, t'he defendants finally agreed to pay $200 (which was their estimate of the legal expense of such a suit), in compromise settlement provided that sum would “clear up everything.” In order that there might be no mistake in the matter, the plaintiff’s office was called by telephone and assurance was given by his -bookkeeper that the bill presented covered all claims *492which the plaintiff, as assignee of the Dairyman’s Supply Company, held against the defendants, and in reliance thereon the compromise was effected and a check given by the defendants to the plaintiff marked “in full payment of account to Feby. 1, 1916.”
Subsequently, the plaintiff made demand for payment of the account in suit, $304.15, which had been incurred prior to February 1, 1916, but, it was alleged, had been overlooked at the compromise and settlement above referred to.
I do not mean to hold that the plaintiff was absolutely concluded by his prior mistake, but in my judgment, he has no right to retain the fruits of his agreement of compromise and disregard its obligations. It by no means follows that the defendants would have been willing to pay the plaintiff $504.15, in compromise of both claims; they might have preferred to rely upon their set-offs and counterclaim and stand a lawsuit, and they might have escaped any liability at all to the plaintiff in such action.
If the plaintiff chose to set aside the compromise settlement erroneously made by his agent, through the mistake of his bookkeeper, he should have placed, or at least have offered to place, the defendants in the position which they occupied before the settlement was offered, so that neither party was injured by the plaintiff’s mistake of fact, and thus leave the whole transaction as it was before the compromise settlement was made. This he refused to do.
For reasons above given I would reverse the judgment.
Trexler, J., joins in this dissent.