(dissenting). The vacillating attitude with respect to the crucial question in this case, from which the court seemed to have freed itself by the decision in Qualseth v. Thompson, 44 S. D. 190, 183 N. W. 116, followed in Adams v. Morehead, 45 S. D. 216, 186 N. W. 830, appears to be reverted to by the decision in the present case.
In Hagen v. Townsend, 27 S. D. 457, 131 N. W. 512, where plaintiff claimed to have sold wheat at a price amounting to $385.38, while defendant claimed the amount to be $360.20, and sent plaintiff a check for the amount, which plaintiff indorsed and cashed, this court said: “There is no evidence to show that such check purported to be in full payment for the wheat; but, even if it had such a clause in it, its indorsement by appellant, if construed as .an agreemenp to accept same in full of his claim, would still be without any consideration zvhatsoever, and not binding upon him.” (Underlining ours.)
The underlined sentence is dictum, and is plainly at variance with the statute existing now and at the time of -that decision. If the indorsement be construed as an agreement to accept the check in full of the claim, it was certainly an agreement in writing, and the statute then and now in force reads: “Part performance of an obligation, * * * when expressly accepted by the creditor in writing in satisfaction, * * * though without any new consideration, extinguishes the obligation.” Rev. Code, § 787.
In Siegele v. Des Moines Mut. Hail Ins. Ass’n, 28 S. D. 142, 132 N. W. 697, defendant, claiming that a loss had been adjusted at $400, sent insured a check for that amount containing the words: “This check accepted as payment in full for all claims to- -date.” The insured, claiming the loss was adjusted at $925, indorsed the check -with the words, “Accepted in part payment of loss by payee,” above 'his signature, cashed the check, and sued for a balance of $525. This court, affirming judgment in his favor, said: “His *72cashing of such -check, without accepting- same in full of his -debt, may have been a wrongful conversion of the check; but it certainly was not an acceptance of $400 in satisfaction of the claim.”
This decision is directly contrary to what is said to be “elementary law” in 1 C. J. 561, § 84. It is there said: “It is elementary law that a debtor has the right to attach to a tender such lawful condition as he pleases. And therefore where a sum of money is tendered in satisfaction of the claim, and the tender is accompanied with such acts and declarations as amount to a condition that if the money is accepted it is accepted in satisfaction, and such that the party to whom it is offered is bound to understand therefrom that if he takes it he takes it subject to such conditions, an acceptance of the money offered constitutes an accord and satisfaction, in the absence of fraud, imposition or mistake. And this is so wholly irrespective of the grounds upon which defendant declines to pay, and proposes to deny his liability for, the balance. The acceptance is an assent de facto- and the -creditor is bound -by it. Nor is it necessary that there be express 'words of assent to the proposition. On the contrary the rule applies ivith full force aind effect, although the creditor protests at the time that the amount paid is not all that is due, or that he does no,t accept it in full satisfaction of his claim. Where the tender or offer is thus made the party to whom it is made has no alternative but to refuse it or accept ft upon such condition. If he accepts it, he accepts the condition also, notwithstanding any protest he may make to the contrary." (Underlining ours.)
In support of the underlined portion of the quotation, decisions are -cited from twenty different states, among which Siegele v. Des Moines Mut. Hail Ins. Ass’n, supra, stands alone to the contrary.
But, in Qualseth v. Thompson, supra, this court got into line with other courts on the question, and held that, where plaintiff claimed a balance of $473.62 for sawing lumber, against which defendant claimed an offset o-n account of defective sawing- and- waste, and sent a -check for $400, on the face of which was written, “Balance for sawing lumber,” plaintiff’s indorsement and cashing of the -check “amounted in law to an acceptance in writing- of the condition, and- therefore that the obligation was extinguished.” This case was followed in Adams v. Morehead, supra, where defendant wrote plaintiff that his bill for $240.83 for professional services was exor*73bitant, and offered to pay $100 in settlement, and later sent plaintiff a 'draft for $100, with a letter stating it was “to close my account.” It was held that the draft and letter “together present the same situation that arose in the Qualseth Case, and that case is followed.” In Adams v. Morehead the court took occasion to disapprove the dictum we have quoted in the case of Hagen v. Townsend.
The court having thus aligned itself with the prevailing view on the question, the departure in the present case is somewhat surprising. The majority vindicates its attitude by saying that in the instant case the contract for the purchase of the shoes was divisible, and that the amount of the check was exactly sufficient to pay for a part of the. claim. But the offer of settlement was not divisible, when the last shoes were returned, defendant wrote plaintiff: “Remittance for balance of account will follow- in a few days.” When remittance was made, it was accompanied by a statement of all of the shoes shipped by plaintiff- under the entire contract, showing the price of the whole under the entire contract. This statement debits respondents with $1,251.90, the amount of the entire bill, claims credit for merchandise returned, $699.30, leaving a balance of $552.60 on the bill as a whole, and.not on any separate or divisible portion thereof. The inclosed check was “to close the account” for the entire transaction between plaintiff and defendant, not to close the account for any separate or divisible part of the contract. No account for any separate or divisible part of the contract was ever rendered, stated, or referred to. Whether or not the contract was -divisible has no bearing upon the question. The offer of the check was not divisible, and it was- not unconditional. It was tendered on the express condition, known to- plaintiff, that, if accepted, it closed the account for everything under the contract, and, when plaintiff indorsed and cashed the check, that “amounted in law to an acceptance in writing of the condition, and therefore * * * the obligation was extinguished.” Qualseth v. Thompson, supra.