after stating the case: An examination of the record shows that no exception was taken to the answer of the witness embraced in the first assignment of error. The objection was to the question, and it was clearly competent to ask the plaintiff as to the extent of his injuries, and for him to state how much he suffered; and if the defendant thought the answer was not responsive, it was its duty to move to strike it out.
This is fair to the judge and the parties, as it gives an opportunity to correct any error that has been committed; and the judge may well conclude when objection is made to a question, which is proper, and none to the answer, that it is not regarded of sufficient importance to note an exception, or that it is unobjectionable.
*41‘‘Defendant’s remedy was to promptly move to strike out the objectionable testimony, and by the failure of its counsel to adopt this course, any and all right which the defendant may have had to object thereto was waived.” 8 Ency. of PI. and Pr., p. 134.
The remaining assignments, as indicated in the brief of the appellant, are intended to present three questions:
(1) The plaintiff having admitted that he accepted benefits, is it competent to prove by parol that he was induced to do so by the promise of the defendant?
(2) If such evidence is competent, was the evidence introduced by the plaintiff sufficient to sustain a finding that the promise was made?
(3) If the promise was made, would it relieve the plaintiff from the legal effect of the acceptance of the benefit?
The term “benefits,” as used in the regulations of the department, has a definite meaning, and does not include hospital treatment and medical attention, and it is the acceptance of benefits, not the agreement to do so, which under certain conditions may bar a recovery. The acceptance of the benefit is an act of the party, which is not evidenced by any writing, and when its effect is in dispute, it is competent to show the circumstances connected with it.
It is in this respect that Aderholt v. R. R., 152 N. C., 411, and Von Norstrand v. R. R., 67 Kan., 387, are distinguishable from the case at bar, as in each of those cases there was a written release.
We think the evidence was competent, and that it was sufficient to be submitted to the jury on the third issue.
There was evidence that the plaintiff received the checks for benefits; that he wrote the superintendent of the defendant and submitted a proposition of settlement, which included future employment, and said he would release the defendant if it would give him this employment; that the superintendent invited him to see him in order that they might talk the matter over; that he went and that in the conversation the superintendent said that “in regard to entering into a contract, they did not do such a thing (this is as I understood him to say), *42and I told bim my reason for it: that I thought there might be some changes around the railroad, as there had been in the past, and I thought it best to have a contract; and he said, ‘We are likely to stay as long as you,’ and I said, ‘That might be true,’ and he said, ‘Haven’t we always looked out for old employees?’ I said, ‘Tes,’ and I insisted that in case I couldn’t run on the short-cut, as my nerves were not right and I would want to be on the safe side, that they give me something else to do; and he said to the manager, ‘Well, isn’t there going to be a light run put on to Fayetteville, and maybe that will suit Mr. Wacksmuth?’ And I said maybe it would; that all I wanted was something in case I couldn’t run, so I would have something to do; and he said, ‘Go back, and don’t go to work until you feel stronger, and put in your application for this run, and we will look out for you,’ and he said, ‘You go back to Rocky Mount and we will look out for you,’ and I said, ‘I am going to have my relief checks signed,’ and I think I also signed for my watch, pin, etc. He touched me and said, ‘Go back,’ that they would look out for me,” and that, relying on what was said to him, he then collected the benefit checks, and this, if believed, justified the jury in answering the third issue “Yes.”
The charge of his Honor is not set out, but as there is no exception 'to it, we must assume that he fully explained to the jury the significance of the issue, and the bearing of the evidence.
If the evidence was competent and was sufficient to sustain the verdict, does the acceptance of benefits, induced by the promise of the defendant, which it failed to perform, bar a recovery?
In the consideration of this question, it must be remembered that the defendant is not relying on the promise.
It does not say that the plaintiff has accepted a new promise of future employment in satisfaction of his claim for damages, and therefore he must declare for breach of the promise, but, on the contrary, it says no promise was made.
It seems to us that a fair interpretation of the verdict is conclusive against the defendant, on the principles declared in King v. R. R., post, 44.
*43The jury has found that there was a contract between the plaintiff and the defendant, and that by its terms the plaintiff agreed to release the defendant from claims for damages on account of negligence, upon payment to him of the benefits and giving him employment, and that the defendant has broken the contract. If so, the acceptance of the benefits did not constitute the settlement, but an act done in furtherance of it. Dalrymple v. Craig, 70 Mo. App., 155.
The contract must be considered as a whole, and if treated as an accord and satisfaction or as a contract with dependent stipulations, the defendant must show performance in order to rely on it.
Our views, as to the controlling principles when an accord and satisfaction is pleaded, are stated in the King case, and it is unnecessary to repeat them.
It is also well settled that “one relying on a contract of compromise and settlement calling for the performance by him of certain acts, must show a performance of the conditions imposed on him by such agreement.” 8 Cyc., 534.
This is declared to be the law in Quarles v. Jenkins, 98 N. C., 261, where the Court says: “The court, therefore, properly instructed the jury, in effect, that if the settlement alleged was to be final, on conditions to be observed and performed on the part of the defendant, and he failed to observe and perform the same according to the terms as agreed upon between the parties, then there was no .such settlement and discharge.”
The case of Armistead, v. R. R., 108 La. Ann., 173, is in principle like this. There the plaintiff’s boat was injured by the negligence of the defendant, and he brought an action to recover damages. The defendant pleaded a compromise and settlement, and it was held that the plea was not good because it had promised to furnish a steamboat and had failed to do so, the Court saying: “The defendant violated the compromise, and then voluntarily canceled it, and is, therefore, not in a position to plead it in bar of plaintiff’s action.”
We conclude that the plaintiff was entitled to judgment upon the verdict.
*44On tbe trial, the plaintiff offered to return the amount he received as benefits.
This was proper, and the defendant is entitled to have this sum credited on the judgment recovered.
We find
No error.