Silvers

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 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 in defendcmt’s amended answer under the title ‘Third and Separate Defensethe defendant gave to plaintiff his promise in writing to pay the sum of fifty dollars in full settlement of all claims for…

Plaintiff sued to recover damages in the sum of twenty thousand dollars for injuries received in an accident alleged to have been caused by defendant’s negligent operation of an auttimoble. Defendant made answer in which he denied negligence, pleaded contributory negligence, and, for a third and separate defense, alleged that plaintiff and her husband entered into a written agreement with defendant, through his attorney, “whereby the plaintiff and h'er husband agreed to receive and accept from' defendant and defendant agreed to pay to plaintiff and her husband the sum of fifty ($50.00) dollars, in full satisfaction, settlement and payment of any and all claims plaintiff and her husband or either of them had or claimed to have against this defendant by reason of the collision or accident hereinbefore referred' to in defendant’s first and second defenses in. this answer contained, . . . that by the terms of said agreement plaintiff and her husband were fully compensated by the payment to them by the defendant of the said sum of fifty dollars.” The answer then alleged a tender of the said sum of fifty dollars, a refusal to accept the same on the part of plaintiff and her husband, and…