delivered the opinion of the court:
By the fifth proposition as tendered to and requested of the trial court by the appellant, the court was asked to hold, “as a matter of law, the payment of the sum of $64,585.35 by defendant (appellee) to plaintiff does not constitute a bar to recovery by the plaintiff.” This proposition the court modified, or rather reversed, by striking out the word “not” before the words “constitute a bar,” so that the holding or proposition declared that the payment of said amount did constitute a bar to recovery by the plaintiff. The first question presented under the action of the court is whether it was error to refuse the proposition as tendered, but as the discussion of this proposition also involves the consideration of the propriety of the modification or change of the holding and giving it as changed, both will be considered together.
The contention of the appellant is, that the giving of this instruction raised a distinct question of law of the same kind as if, in the trial of a case before a jury, the court should instruct the jury to find for the defendant. Appellant says: “Indeed, if this proposition were given as an instruction to the jury it would entitle the defendant to a verdict. The words ‘as a matter of law,’ in this proposition, take the question out of the questions of fact, and if, as the learned counsel for appellee here contend, the determination of the question depended, not upon this matter of law but upon a question of fact, then the trial court clearly erred in holding this proposition.” Appellee’s position with reference to this fifth proposition is, that “this was properly refused as offered, because it is not a proposition of law at all. Whether the payment of $64,585.35 was a bar depended upon how much was due, on the circumstances under which it was paid, and upon the consideration of all the other evidence in the case. * * * The only questions of law are whether it was proper to modify these two propositions. The other propositions of law were properly held at plaintiff’s own request, and cover all the phases of the case.”
As we view this instruction as given, it was, in effect, holding that under the law and the evidence the plaintiff (appellant) could not recover. There was no question but that the amount of money stated in the instruction was paid by appellee to appellant, and if the payment of that amount by appellee tó appellant constituted “a bar to a recovery by the plaintiff in this suit,” then that was the end to the plaintiff’s case. The giving of the instruction as asked by appellant would not necessarily have resulted in a verdict in his favor had the case been tried before a jury, because the question of the receipt and release might still have been regarded as sufficient to bar appellant’s recovery; but the giving of the instruction as modified left no question, and simply held that the payment, which was not denied, did constitute a bar to the recovery. The question is then presented, was the giving of this instruction or holding error on the part of the trial court?
The declaration contained the common counts and a special count on the contract set forth in the statement. The pleas were the general issue, and special pleas setting up the payment of the sum mentioned in the holding and a release given by appellant upon said payment. With reference to the payment, appellant admits the receipt of the money and the giving of the release, but insists that in law that does not constitute a bar to his action, because, he contends, the amount due him was liquidated, and that the receipt of a lesser sum than the whole of a liquidated debt does not satisfy the debt or release the debtor. Appellee, on the other hand, insists that there was a controversy over the amount due appellant; that while the original contract was for $75,000, ($10,000 of which was paid in cash at the time of making it,) appellant, against the spirit and letter of the contract, withdrew $2000 from the firm of Browning, King & Co. between the first and seventh of July, 1898; that the contract read as of July 1 and took effect on that day, and that any moneys drawn after that time by appellant were not included within the terms of the contract, and that appellee having succeeded to the assets of Browning, King & Co. he was entitled to a deduction of the §2000 thus improperly withdrawn by appellant; that at the time of the payment of the amount stated in the instruction or holding as constituting a bar to appellant’s recovery, appellant and appellee were disputing over this amount of credit, and that appellant, with full knowledge of that fact, received the money stated in the instruction and executed his release, and that unless such release was obtained by fraud or duress it was a bar to appellant’s suit. Appellant did not deny the receipt of the amount stated in the instruction, nor did he deny that there was a dispute as to whether the §2000 drawn by him in July, 1898, should be credited on the purchase price; nor does he deny, but admits, that he gave the release offered in evidence, and places his whole reliance upon the proposition that the receipt of a part of a liquidated sum cannot be pleaded as the release of the whole. In this contention appellant does, and must necessarily, ignore the legal effect and the fact of the dispute with reference to this §2000 credit. The mere fact that the original contract was in writing is not conclusive of the question that the damages or demand was a liquidated demand. Practically all written obligations for the payment of money are for a specific sum or a sum that can be made specific by mere calculation, but when it comes to a demand of payment or adjustment of the debt, the obligor or payor may insist that he has paid more upon the debt than the holder has given him credit for, or is entitled to off-set or counter-demands, in any of which cases it could not be contended that because a specific sum was stated in the writing of one of the parties the claim was a liquidated one, and that any settlement between the parties, however fairly and understandingly made, by which a less sum was paid by the obligor in the writing than it called for, would not be a bar to the action of the holder of the writing, on the ground that the whole sum called for had not been paid. And in this case the question to be determined is not whether appellant might have recovered the full $65,000, and interest, from appellee upon the contract, but whether there was an honest dispute as to whether appellee was bound to pay the indebtedness of appellant to Henry W. King & Co. for moneys withdrawn between the first and seventh of July.
Upon a reading of the record we cannot escape the conclusion that there was an actual bona fide dispute between the parties as to the amount due appellant from appellee, and where there is a controversy and the balance due is fairly in dispute the claim cannot be treated as liquidated. “In such cases,” said Broches, J., in Farmers’ Bank of Amsterdam v. Blair, 44 Barb. 652, “it is not admissible to go behind the settlement with a view to determine which of the parties was right. Compromises are to be encouraged because they promote peace, and when there is no fraud and the parties meet on equal terms and adjust their differences, the court will not overlook the compromise but will hold the parties concluded by the settlement.” And this court said in Lapp v. Smith, 183 Ill. 179, quoting from McDaniels v. Bank, 29 Vt. 230: “When a party makes an offer of a certain sum to settle a claim, when the sum in controversy is open and unliquidated, and he attaches to his offer the condition that the same, if taken at all, must be received in full satisfaction of the claim in dispute, and the party receives the money, he takes it subject to the condition attached to it, and it will operate as an accord and satisfaction.” Ostrander v. Scott, 161 Ill. 339; Hayes v. Massachusetts Mutual Life Ins. Co. 125 id. 626.
Holding, as we do, that this fifth proposition was in effect a peremptory holding in favor of appellee, and the evidence showing, beyond controversy, that there was an actual, bona fide dispute between the parties, then the only remaining question to be determined is whether there was any evidence tending to show that the receipt offered in evidence was not the free and voluntary act of appellant; and it being conceded that the receipt was knowingly, freely and advisedly given, we are of opinion that the proposition was properly held.
The judgment will be affirmed.
Judgment affirmed.