1. The first exception is to the refusal of the
court below to allow an exception to the ruling upon an objection of the defendant to a question put to the plaintiff by his counsel. The refusal was placed upon the ground that the defendant’s counsel had not notified the court of his purpose to except until after the witness had answered the question.
We do not deem it necessary to decide the question thus raised, nor to determine how far such refusal is open to exception, and how far it is a matter of judicial discretion; because we are satisfied that the previous ruling, upon the defendant’s objection to the question, was right; and so it appears that the defendant was not prejudiced by either ruling. The question to the witness did not call for the contents of any paper; and the answer, that interest was included in the note, was of a fact which would not appear from the note itself, if produced.
*402. It appears from the bill of exceptions, that, when the parties met to attempt a settlement, the defendant made out a list of overcharges and improper charges in the plaintiff’s account, and also claimed a deduction of five per cent., as having been agreed to by the plaintiff, upon the whole bill, which together, as he claimed, would so reduce the plaintiff’s bill as to make a balance due to himself of $522; whereas the plaintiff claimed a balance in his own favor of $685. The defendant’s evidence tended to show a compromise, by which the plaintiff agreed to make a deduction of ten per cent, on his whole bill, and to concede some of the other deductions claimed, by which a balance of $168 was fixed upon as the amount to be paid by the defendant in settlement ; and for which amount the plaintiff agreed to receive the negotiable promissory note of the defendant, on four months time; also that the defendant offered his note in accordance with that agreement, and it was refused by the plaintiff.
The four instructions asked for, and the one numbered the fifth in the bill of exceptions, relate to the effect of this alleged settlement.
Such a settlement, if fully carried into effect, would discharge the whole debt. The negotiable note of a debtor, for the full amount of a liquidated demand, will discharge that debt, if so intended; and in this Commonwealth the presumption is that a note so given is intended to be in payment. So if unliquidated or disputed demands are adjusted by compromise, and money or a negotiable note be given for the balance agreed upon, and accepted, it will be a satisfaction and discharge of the entire demand, although in reality of a larger amount than the sum so agreed upon.
But an executory agreement to discharge such a demand, upon the giving of a promissory note by the debtor, or payment of a sum less than the amount actually due, is not binding upon the creditor, and cannot be enforced against him or set up in bar of a suit upon the demand; and therefore the mere offer of such note, or of such less sum in payment, will not operate to discharge the debt, unless it is accepted by the creditor. His refusal to accept it is the breach, only of an executory agreement without consid *41eration. The whole transaction will then stand as an accord without satisfaction.
Upon this statement of the law, it is manifest that the instructions given, upon this part of the case, were too favorable to the defendant; and those refused were properly refused.
8. As to the receipt of the plaintiff, we are of opinion that, as an agreement respecting interest and the discount of five per cent., it did not apply to lumber thereafter to be delivered. The position of the plaintiff’s counsel is therefore correct, that, even if its construction in this particular was erroneously submitted to the jury, it could not prejudice the defendant. Its legal construction was the one least favorable to him.
But the question in regard to the interest, and the discount upon the whole of the plaintiff’s account, did not depend upon that receipt alone, but upon the whole evidence, including oral testimony. The receipt was merely evidence of what the arrangement was in that particular. We think the whole testimony upon that point was properly submitted to the jury.
4. The witness Hubbard had testified that he was authorized by the plaintiff to make, and did make, the settlement of the demand, indicated by his receipt. Evidence that he had subsequently stated that he had not settled with the defendant was competent for the purpose of contradicting him.
5. The last instruction seems to us to be objectionable, and so far likely to mislead the jury, and to prejudice the defence, that we feel compelled to set aside the verdict on that account. As we understand the bill of exceptions, the defendant relied not only upon the alleged agreement to make a deduction for certain ascertained errors, and ten per cent, by way of general discount, thus reducing the balance to $168; but also upon other objections to the bills, on account of overcharges and improper charges claimed to exist therein. If the agreement was not established in his favor, it was not established against him, as an admission of the correctness of the plaintiff’s account in other respects, or as a waiver of objections to errors not agreed to be corrected. He was entitled, m that event, to have all his objections to the account considered by the jury independently of the compromise.
*42The case finds that the defendant did testify “ that some of the lumber was not of the kinds charged, that the prices were not fair, and that they were too high.” He, also, in support of the same grounds of defence, relied' on the conduct of the parties and the other evidence from which it had been sought to establish the agreement of compromise and settlement.
But this defence was entirely excluded by the instruction to the jury that “ the defendant admits substantially the plaintiff’s account charging him with $4538, and crediting him $3853; but claims that as to the balance it was agreed between them,” &c, Upon this instruction, there was nothing left for the jury to pass upon but the alleged agreement of compromise and settlement, For this reason, and upon this instruction alone, the
Exceptions are sustained.