I concur in ordering a reversal of the judgment but do not concur in directing further proceedings in the trial court. I believe judgment should be entered for the plaintiff upon the findings. Every fact necessary for that purpose is found, and the only reason for not doing so that is or can be given is the finding of the trial court upon the point of accord and satisfaction. Even if *Page 704 further proceedings were necessary for a determination of this point, the further proceedings should certainly be confined to a determination of this issue alone. But in truth there is no occasion for retrying even this issue. The main opinion says that the finding as to accord and satisfaction was in effect that there was an executed accord in that the defendant's promise to pay was accepted in satisfaction of the claim sued on. I do not think this construction should be put upon the finding. It reads: "That prior to the beginning of this action, to wit, on the 17th day of February, 1916, as set out indefendant's amended answer under the title 'Third and SeparateDefense,' the defendant gave to plaintiff his promise in writing to pay the sum of fifty dollars in full settlement of all claims for damages plaintiff held against the defendant by reason of that certain accident sued upon and set out in plaintiff's complaint herein, and that said plaintiff then and there accepted said promise in writing in full settlement and satisfaction thereof."
This finding must be construed in connection with, and in the light of, the third and separate defense, to which it refers and whose issues the finding was designed to meet. It seems to me plain enough that all that was intended by the finding was to find an accord and satisfaction "as set out in defendant's amended answer under the title 'Third and Separate Defense.' " It should be borne in mind that the court had previously overruled a demurrer to this portion of the answer holding that it stated a good defense. I do not think it occurred to counsel or to the court that there was any difference whatever between the facts found and those pleaded. The facts pleaded, as the main opinion shows, were wholly insufficient to constitute an accord and satisfaction. They, in fact, showed affirmatively that there was none. Furthermore, I think it plain enough that the defendant cannot amend his answer so as truthfully to allege an accord and satisfaction, and that he could not prove his answer if he did amend. The supposed accord and satisfaction were carried into a writing which constitutes the final memorial of the transaction. That writing is pleaded and is set out in the main opinion and by its terms it not only does not show that the plaintiff gave a release in reliance upon the defendant's promise or accepted the defendant's promise to pay fifty dollars, as distinguished from the *Page 705 actual payment of the fifty dollars, as a final settlement, but does show just the contrary. It declares in so many words that the plaintiff agrees to, that is, will, give a release in consideration of the defendant's promise to pay fifty dollars, that is when he pays the fifty dollars. The release and the payment were plainly to be concurrent, and there was to be no release unless the money were paid. If there were to be a release, that is, a final settlement by the plaintiff, then and there, in consideration of the plaintiff's promise alone, there was no sense in making the writing in the form in which it was made. The plaintiff would have made a release at the time instead of an agreement merely to make one. Summing the matter up, the only reasonable interpretation of the writing is that the matter was not to be closed out between the parties and the plaintiff's claim settled until the sum agreed upon was actually paid; such an agreement is an accord but not a satisfaction; and finally it is not open to the defendant to show any different arrangement because to do so would be to vary the terms of the writing which is the final memorial of the arrangement and is alone competent evidence of what the arrangement was. This being the case, there is no reason for permitting the defendant further to litigate the point, and judgment should be directed against him.