dissenting: Since I believe the reply in this case is sufficient to raise questions of fact as to whether an accord and satisfaction as to “all claims” was consummated between the parties, I feel constrained to dissent from the majority opinion.
First, the reply is entitled to all presumptions and inferences in favor of the pleader when attacked by ■ a demurrer. (Hatcher’s Kan. Dig., Pleading sec. 35; West Kan. Dig., Pleading sec. 192 [2] et seq.) Secondly, the plea of an accord and satisfaction is an *791affimative defense which must be pleaded, and if denied by plaintiff, proved by the defendant. (Hines v. Roberts Bros., 117 Kan. 589, at page 592, 232 Pac. 1050; Record Corporation of America v. Irwin, 179 Kan. 546, 297 P. 2d 209.)
It must be admitted that the reply is a somewhat peculiar pleading. It begins with a general denial. Then, it specifically denies paragraphs 4 and 5 of the answer “except as hereinafter admitted.” Certain argumentative facts are then alleged in which the pleader argues that no accord and satisfaction occurred, ending with another specific denial that the acceptance of the check constituted an accord and satisfaction as to his claim for five percent of the gross charges placed upon defendant’s books. This last part of the reply seems similar to a negative plea somewhat in vogue during the common law practice, that of the special traverse. This plea was to be distinguished from that of a common traverse (a specific denial) and also from the general issue (now represented by the general denial).
Normally, the special traverse began with the allegátion of certain facts inconsistent with the allegations of the opposite party and constituting an argument that opponent’s allegations were incorrect; then the words “absque hoc” were used to introduce a direct denial of opponent’s allegations.
It is submitted that given a favorable construction, the plaintiff’s reply can be fairly summarized as follows: There were two claims between plaintiff and defendant; the check was intended and accepted as only settling all claims as to fixed salary and was not intended to settle plaintiff’s claim for a five percent commission on the gross charges, absque hoc plaintiff specifically denies that the acceptance of the check constituted an accord and satisfaction of his claim for the commission. Of one point, we may be absolutely certain, the reply is not insufficient because the words “absque hoc” were omitted.
It must be remembered that to constitute an accord and satisfaction there must have existed a real agreement, understanding, or “meeting of the minds.” Some actual consideration must have passed between the parties. The reply would seem to raise issues of fact as to both of these questions. (See Lighthouse for the Blind v. Miller, 149 Kan. 165, at page 167, 86 P. 2d 508; Robinson v. Hollenbeck, 159 Kan. 372, at page 377, 155 P. 2d 417; and Manning v. Woods, Inc., 182 Kan. 640, 324 P. 2d 136.)
*792Therefore, the learned trial judge was correct in overruling defendant’s demurrer.
I am authorized to state that Mr. Justice Wertz joins in the foregoing dissenting opinion.