ON PETITION EOR REI-IEARING.
PotteR, Chiee Justice.The defendant in error has. filed a petition for a rehearing and insists thereby not only that the points involved in the case were incorrectly decided, but that upon the conclusion reached the court should have remanded the cause for a hew trial instead of directing judgment.
1. In the brief in support of the petition we find’ again discussed the effect of plaintiff’s acceptance of the amount *427allowed by the city upon his bill presented in 1902, and it is again insisted that the circumstances do not show a payment and acceptance in satisfaction of the entire claim. That question is fully considered in the former opinion and but little further comment respecting it seems necessary.
Plaintiff presented to the city a claim for unliquidated damages. So far as this case is concerned he had nothing hut an unliquidated demand. Moreover, it seems to have been disputed. At least a part only was allowed, and in this suit upon the claim it was contested upon the ground, among others, that there was no liability on the part of the city for any of the damages alleged. The rule, therefore, to be applied to the allowance and acceptance of a part of the claim is the well, settled one that payment and acceptance of a less sum than claimed, in satisfaction of an unliquidated or disputed claim, operates as an accord and satisfaction. (1 Cyc., 329-331; 1 Am. & Eng. Ency. E., 419-420.) That the claim presented was for the entire demand seems to be clear, and was practically admitted by the plaintiff in his testimony. The bill contained several items, it is true, but they were each and all claimed as a result of the same cause or injury, viz.: as damages on account of grading, as stated in the bill, or, as set out in the suit, on account of a change in the grade of the streets adjoining 'plaintiff’s property. That the claim was unliquidated is not denied, nor could it be. That part had been allowed and accepted is conceded. The only controverted question of fact, therefore, in reference to this matter was and is whether the payment and acceptance was in full satisfaction of the damages claimed. The solution of that question depends upon the evidence and the inferences to be necessarily drawn therefrom.
The evidence upon the question, though meager, is not conflicting. It consists principally of the bill as presented, the record of the action upon it by the city trustees or council, and the warrant drawn and delivered to and accepted by the plaintiff. In addition, the plaintiff testified in answer to a question upon cross-examination that the bill upon *428which the allowance was made was not for the same claim or damage for'which he was sueing, and that the grade had nothing to do with that bill; but following that he gave the testimony .quoted in the former opinion admitting in effect that the bill embraced his entire claim for the damages' sued for, and we do not understand that it is now contended otherwise. It is, however, contended that the allowance by the citji- was in payment only of certain items of the bill, and that the remainder of the bill was not considered, or that if it was considered and rejected the plaintiff had no notice thereof.
In support of the theory that the allowance had reference to particular items only, reliance is placed on.the fact that opposite each of the first three items appeared a pencil check mark, and that the aggregate of those items equals the amount allowed. But the check marks are totally unexplained. We cannot assume that they were made by any one connected with the city government, or that they were placed upon the bill before or at the'time of its consideration by the trustees. They, therefore, prove nothing. The fact that the total amount of the three items equals the amount allowed might he of some importance depending upon the circumstances. It ,is apparent that the board might have regarded the damages claimed by those items as representing all to which the plaintiff was entitled in any event, or that to settle a disputed matter it was willing to allow the amount of those items and no other amount. But in the present state of the evidence the intention must be gathered from that which was done. And it is the duty of the court to ascertain the necessary inferences from the evidence.
It has been said that the hill embraced plaintiff’s entire demand. We think it equally clear upon the evidence that the city board treated and considered it as an entirety. In each entry in the record of the hoard the bill is referred to as one for a specific amount of damages account of grading, the amount mentioned being the total amount of the bill. It is not otherwise referred to, and such description is fob *429lowed in the entry of December 31, 1902, by the words “allowed $277.65.” This entry is not otherwise explained,, and upon its face is to be construed, we think, as showing a consideration of the entire bill and an allowance of a less sum than claimed, and thus the necessary inference or presumption of fact is that the remainder was rejected, and that the allowance was in full compensation for the damages claimed.
If in fact the city board allowed the amount accepted as full compensation, and that, we think, is the effect of the evidence, considering the nature of the claim as well as the record entries showing the board’s action, the plaintiff, in the absence of anything to the contrary, must be presumed to have known it when he accepted the payment. It does not appear that he made any inquiry about it, but we have the bare fact that he accepted the warrant and received the money it called for. And the warrant recited on its face that it' was for damages by grading. In considering his action in the premises; as well as that of the board, the discussion in the former opinion is pertinent with reference to the character of the claim and cause of action. It is not necessary to repeat what is there said respecting it. If the plaintiff was entitled to any portion of thé amount claimed in his bill it was because of the injury to his property through a change in the grade of the streets. He had a single cause of action, and, though various things might be considered in estimating the damage under the. usual rule of the difference in the value of the property before and after the change of the grade, they are in that sense merely elements of a single and inseparable damage. The plaintiff seems to have so understood it, since his bill was headed, “Bill of damages acc. grading.” The case of Fulton v. Monona County, 47 Ia., 622, is not opposed to the view we have taken. In that case, involving a bill for services and expenses of a superintendent of schools, the court • held ■ that upon the evidence the conclusion , was authorized that the claimant had grounds to believe that the *430board had not finally and fully rejected her claim so far as it was in excess of the amount allowed, but had it under consideration, and hence it was said that the plaintiff could not be presumed to have received the warrants with knowledge that they had been'allowed in full of her claim.
There seems to be some misconception in the mind of counsel regarding the references in the former opinion to the law concerning the splitting of a single cause of action for the purpose of suit, and it is protested that plaintiff has not divided his cause of action, nor sued for part in separate suits. It was not supposed that he had. The discussion upon that subject in the opinion was relevant to the determination of the effect of the allowance and acceptance of a part of his claim. It seemed to be proper to explain that the claim upon which the allowance was made was not composed of disconnected items founded upon separate contracts or injuries, but that all the items went to make up the aggregate amount of the damage claimed to have resulted from a single injury, and that the transaction as to the allowance and acceptance was to be considered from that viewpoint.
Upon the evidence, therefore, in our opinion, the finding of fact was not justified that the allowance by the board had reference merely to the first three items of the bill. The finding was in the alternative as to what was done with the remainder of the bill, viz.: that “the balance of the items.were rejected or not acted on by the said board of trustees.”
The view w? have taken of the question does not impose upon' the plaintiff below the burden of proof in the first instance to negative a satisfaction of the claim through his acceptance of the warrant, but only to overcome the effect of the defendant’s evidence, which upon principle and the authorities was sufficient prima facie to show a settlement and satisfaction of the claim sued on.
2. It is further insisted that accord and satisfaction is insufficiently pleaded in the answer to authorize the admis*431sion of evidence in support of such defense; and it is argued that the question was raised by objection to the evidence when offered. The objection in this particular is that the answer instead of pleading the facts states a conclusion of law.
In the first place it is doubtful, to say the least, whether the question was raised by any objection to' the evidence'. The only objections as to this matter which we find in the record are these: When the city clerk was testifying for the defense, having without objection read from the records of the board the action taken upon the bill of plaintiff on September 24, 1902, he was asked to turn to another page. An objection was then interposed “to this procedure on the ground that it calls for a legal conclusion and is irrelevant.” The objection was overruled and an exception taken. Without further objection the witness was allowed to read the subsequent record of December 31, 1902, showing the consideration of the bill and the allowance thereon. When the warrant was offered, the plaintiff’s counsel objected without stating any ground. It was overruled and an exception taken. The warrant was thereupon admitted in evidence, and immediately thereafter it appears that the plaintiff offered to introduce his claim that had been presented to the city in the amount of $1,629.65, on which was paid $277.65, the clerk not then having the same in his possession, and leave was granted the plaintiff, to introduce it at any time before the conclusion of the case. The clerk was afterwards recalled for further cross-examination, and, having the bill in his possession, he was interrogated respecting it. Upon that examination was brought out the fact of the presence of the check marks upon the bill. Thus it appears that the insufficiency of the answer was not directly suggested by any objection to the evidence, unless it may be supposed that it was argued in support of the objections that were interposed, but the record is silent upon the matter except as above stated.
The answer contains two separate defenses. In each there is an allegation of the allowance in question as full *432compensation for all damages claimed, and the acceptance by the plaintiff of the amount allowed. The presentation of the bill is alleged, the action taken on September 24, 1902, laying it over for further consideration, and that on December 31, 1902, the board considered it, and upon a full consideration thereof allowed to the plaintiff the sum of $277.65 “as full compensation for all damages done to the property of plaintiff by reason of any action of the City of Rawlins in grading the streets adjacent to his property;” that upon the allowance a warrant was issued in favor of the plaintiff for the said sum allowed “as full compensation;” and that the same was delivered to said plaintiff and accepted by him; that he presented it for payment and was paid the amount thereof out of the city treasury. That is the substance of the allegations as to this matter in each defense, except that it is alleged additionally in the second defense as follows: “and said plaintiff accepted the same (the warrant) and received the money thereon out of the treasury of the' said City of Rawlins, defendant herein, and thereby compromised and settled any and all claims for damages that he might or did have against the said City of Rawlins by reason of any grading of the streets adjacent to his property by said city.”
Briefly stated, the method or form generally laid down in the -books and approved by the courts for pleading accord and satisfaction is to allege that the thing delivered or money paid was delivered or paid to the plaintiff and received by him in full satisfaction and discharge of his said cause of action, or the claim’ set forth in the petition. (1 Kinkead’s Code Pl., p. 140; 2 Bates Pl. Pr. Par. & Forms, 860; Baldwin v. Bank, 1 O. St., 141; Leavitt v. Morrow, 6 O. St., 71, 72; 1 Ency. Pl. & Pr., 76, notes 3-5.)
The answer alleges as a fact, and in that respect it seems to be unassailable, that the bill was considered by the board and a stated amount allowed thereon and a warrant for the amount delivered to the plaintiff as full compensa*433tion for the claim sued on. It is also alleged as a fact that the warrant was accepted by the plaintiff, and that he received from the city treasury the amount thereof, but it does not seem to be directly alleged that the plaintiff accepted or received the warrant or money as full satisfaction of his claim or cause of action, unless the averment that “plaintiff accepted the same” is to be construed to mean that the acceptance was of the warrant for the purpose for which it was alleged to have been issued, viz.: as full satisfaction; it being alleged that “in accordance with allowance a warrant was issued * * * payable to said plaintiff in the sum of $277.65, and the said plaintiff accepted the same,” etc. But in the second defense, following and as a part of the averment of acceptance is the allegation “and thereby compromised and settled any and all claims for damages,” etc. This last allegation may be and, perhaps, should be held to be, a statement of a conclusion of law, and as such, upon a proper objection, an imperfect and insufficient averment of the fact of acceptance in full satisfaction and discharge of the cause of action.
However, the parties went to* trial upon the answer without objection to its sufficiency; it alleging a compromise and settlement through the payment and acceptance 'of a stated amount and that the payment was made as full compensation. Where no objection to a pleading on the ground of its insufficiency has been made before triál, the most liberal construction will then be adopted to sustain it if possible, and the objection will not then be sustained unless there is an entire omission of a material fact or a total failure to state a cause of action or defense. (1 Bates Pl. Pr. Par. & Forms, 458, 459; Holz v. Hanson, 115 Wis., 236; Pomeroy’s Rem., Secs. 549-551; Ry. Co. v. Stone (Kan.), 37 Pac., 1012; Johnson v. Anderson (Kan.), 57 Pac., 513.)
In the case last cited it was said:
“The sufficiency of the petition was raised by an objection to the introduction of any evidence under if. This *434method of attack is not favored, and the allegations of the petition will be construed liberally, for the purpose of sustaining it.”
And in Railway Co. v. Stone, supra, no demurrer or motion having been interposed, but the objection to the petition being first raised by an objection to evidence, it was said: “If the facts are all stated, even indefinitely or in form of conclusions, a petition will be regarded as sufficient.” Pomeroy says in Section 549 of the work above cited: “Thus, if instead of alleging issuable facts the pleader, should state the- evidence of such facts, or even a portion only thereof, unless the omission was so extensive that no cause of action at all was indicated, or, if he should aver conclusions of law, in place of fact, the resulting insufficiency and imperfection would pertain to the form rather than to the substance, and the mode of, correction would be by a motion, and not by a demurrer.” And again, in Section 551: “If the pleading was not reformed, and if the defect was not so serious as to render it demurrable, it would be treated on the trial as sufficient; and the statement of probative matter or of legal conclusions would take the place of the issuable or material facts which ought to have been averred, and would thus become material.”
It having been averred that the city allowed the amount stated as full and complete satisfaction, the answer states in a single sentence that “in accordance with allowance” a warrant was issued, and the plaintiff accepted the same; and the sentence concludes with the averment above quoted that the plaintiff thereby compromised and settled the claim. Giving to the allegation the liberal construction required, there is not a total failure to allege the material fact that the warrant and money were received in full satisfaction and discharge of the claim. That the allowance was in full satisfaction is alleged, and it is also alleged that the warrant was issued and accepted in accordance with the allowance. Though the remainder of the allegation may be a conclusion of law, it supports the inference that the acceptance as well *435as the payment was in full satisfaction of the claim. As against an obj ection ■ upon the trial to the introduction of evidence the answer must, therefore, be held sufficient.
3. In accordance with the direction contained in the former opinion an order was entered remanding the cause with directions to the district court to render judgment for the defendant below, the plaintiff in error here. It is now urged that such order was improper in view of the grounds upon which the reversal was based, and that the cause should be remanded for new trial i.f the order of reversal is adhered to. At the court’s request counsel for plaintiff in error has submitted a brief upon that question, opposing any modification of the order. We have carefully considered the matter and have concluded that the objection to that part of the order which directs the entering of judgment without a new trial is well taken.
The judgment was reversed for the insufficiency of the evidence to sustain the finding of fact that the city authorities had allowed the first three items of the bill without reference to the remaining items. The effect of the finding as we think it must be construed is that the three items aforesaid were separately considered by the trustees, and upon such consideration allowed. The error of the court, therefore, was primarily in the finding of fact, and in denying the motion of defendant below for a new trial. Even in such a case we suppose an appellate court might be justified in directing the proper judgment to be entered, where it appears that all the facts are shown by the evidence and are not disputed, but the course taken -should be such as will appear to best promote the ends of justice. (3 Cyc., 454, 455.) Under our practice and in this case the defendant below raised the question of the sufficiency of the evidence to support the finding of fact by a motion for new trial, and that motion ought in our opinion to have been granted, so that error was committed in overruling it. It is not apparent to us that there may not be other competent evidence tending to throw light upon the point in issue, *436and, therefore, the logical procedure would seem to be the remanding of the cause for a further trial, in view of the error forming the ground of the reversal.
In Gay v. Davey, 47 O. St., 396, the court say: “Material facts necessary to sustain the judgment were in issue between the' parties. The main ground upon which the defendants predicated their motion to set aside the judgment and for a new trial was that the finding of the court was against the weight of the evidence. When the reviewing court reversed the judgment of the court below for error in overruling such motion, the only judgment which should have been rendered after reversal was to grant a new trial, as moved in the trial court. * * * For aught appearing to the contrary, upon remanding the cause for further proceedings, any unavoidable defect in the evidence on the hearing might, in furtherance of justice, have been supplied in a second trial.”
It is suggested in the brief of counsel for plaintiff in error that it would not be competent to explain the record of the city board or alter its effect by parol testimony. We think it unnecessary as well as improper to decide or consider that question. It will be time enough to do so when evidence of that character for such purpose is offered or admitted. But if the contention be correct we are not in a position to say that there may not exist other entries in the record of the board showing its action in the premises, not appearing in the present record, or at least some competent facts pertinent to the issue.
However, the insufficiency of the evidence to sustain the findingr is not the only point to-be here considered upon this inquiry. The trial court failed to make a definite finding upon a material fact, viz.: the action of the board of trustees with reference to the remainder of plaintiff’s bill. It is true that upon the evidence presented we are of the opinion that the only proper finding would have been that the part of the bill not allowed was rejected. Nevertheless, the trial court made no finding as to that matter, and hence the findings did *437not definitely determine the facts necessary to support the court’s conclusions of law. The finding in that respect was in the alternative, that the remainder of the bill was either rejected or not acted on. Citing a large number of cases, it is said at page 456, in 2 Cyc.:
“On setting aside a judgment in an action at law, the appellate court will not undertake to render or order final judgment where the facts in issue are controverted or not definitely settled, but will order a new trial. And so, where the facts have been found so imperfectly as not to authorize a judgment thereon, the appellate court will remand the cause for further proceedings.”
In order to render or order a judgment in the case at bar, it would be necessary for this court not only to make a finding as to a fact apparently not considered by the trial court, but also to substitute a finding for the one erroneously made by the trial court. The order previously entered _ directing judgment was an inadvertence and in our opinion improper under the circumstances, and it should be modified so- as to remand the cause for a new trial. It will be so modified, and the petition for rehearing denied.
Beard, J., and Scott, J., concur.