The leading error of the plaintiff, and that which disposes of the greater part of his objections, is that he seems to view the answer as pleading an accord and satisfaction, and he argues against the sufficiency of the facts proved to establish this plea in law. It is not a plea of accord and satisfaction, but only an account stated as to the amount to be paid, and then an agreement as to the time of payment. In connection with this, the plaintiff falls into *221another error in arguing that an agreement without consideration to accept a less sum, cannot be pleaded to a claim for a greater sum due. Admitting this as law, it applies only to a case where the greater sum which is to be compounded, is a definite, fixed, certain sum. It does not apply to a case like the present, where the sum was yet unsettled, unliquidated, not agreed. The defendant says that they differed as to the amount, and at the settlement agreed upon it, and this is proved, as we infer from the case. It is apparent in the pleadings and bills of exceptions.
One of the bills of exception states that the plaintiff proved, (that is, offered evidence tending to prove,) that his work was worth one dollar and a half a day, and the plaintiff then assumes this to be such a “ sum due,” as cannot be compromised for a less sum except under some good and valuable consideration, and that the less sum -must be paid, in order to constitute a bar to the original claim. In this the plaintiff is in error. His assumption is not correct. The facts show a settlement of an agreement upon a disputed matter, and nothing more. Another ground which plaintiff takes, is this : he claims that the defendant did not pay the. first half of the money found due him, at the time agreed, and thence argues that the whole agreement is broken,' and that he can set it aside and stand upon his original claim-There is nothing in the transaction, as shown, and there is not a word in the proof as given, to show that the settlement was thus conditional. It is not so in its nature, and we cannot give it this construction. As these considerations go to the foundation of the instructions, to the refusal or giving of which the plaintiff excepts; it is deemed unnecessary to enter into them in detail. Three special issues were submitted to the jury, who were instructed to find specially on each. They were, (stated briefly): 1st. Did the parties have a settlement of the matters in dispute before suit ? To which the jury returned that they did. 2d. Did the plaintiff agree to pay one dollar and thirty-seven and a half Cents per day, one-half in two weeks and the balance in May? Verdict, that he did. 3d. Did the plaintiff pay ox tender the *222one-balf within the two weeks, if not, did he before suit ? Yerdict, he did not pay nor tender within the two weeks, but did tender before suit. The defendant, then, did not pay when the money was due, but saved himself by his tender before suit.
Whether the court should, strictly speaking, have rendered judgment for the plaintiff, is regarded as an immaterial question, since if judgment were so rendered, it must be at the cost of the plaintiff. The money was paid into court, and the plaintiff was at liberty to take it. If the money had not been thus paid in, the plaintiff would have been entitled to judgment (at his .cost) so that he might have execution. On the whole, we think there is no error in the record, and the judgment of the District Court is affirmed.