by said referee, to which ruling and decision of said referee said defendants then and there excepted.

The first question for consideration in the order presented by the appellants is, Did the referee err in permitting the written contract to be read in evidence? In determining this question, we must recur to the pleadings, the statutes pertaining thereto, and to the contract.

The contract offered and read in evidence by the plaintiff was meagerly set forth in the complaint; and it is quite clear that under the common-law rules of pleading it could not properly have been admitted in evidence, as under that system justice between the parties was often secondary to a strictly technical adherence to the doctrine that "the proofs must correspond with the allegations." But recent statutes have displaced this system of technicalities, and introduced more equitable rules requiring the allegations of pleadings to be liberally construed, with a view to substantial justice between the parties. It is sufficient if the complaint contain, in ordinary and concise language and reasonable certainty, allegations of such constitutive facts as will entitle the plaintiff to prove and maintain his case, and give the defendant opportunity to meet and controvert the alleged facts relied upon by the plaintiff.

To ignore the express commands of these statutes, by an adherence to the system which they were intended to abrogate would be a wanton neglect of a plain rule of law and duty.

The allegations of the complaint setting forth an executory contract for the sale and delivery of "about nineteen hundred head of cattle, more or less, as plaintiffs were able to deliver, said cattle then being upon the range;" coupled with an allegation setting up an acceptance by the defendants of "about seventeen hundred and forty-four,” in full for the number to be by plaintiff's delivered under the contract or agreement, and the promise to pay for the same, and a failure to pay as promised-constitute the gravamen of the

action.

The promise on the part of the defendants, as set forth in the complaint, is not the promise contained is the contract: one is a promise to pay for classified cattle, to be delivered by the plaintiffs, under and in compliance with the terms of the

contract, at prices specified per class; the other is a promise to pay a certain or stated sum for the cattle actually delivered, accompanied with an allegation of an agreement that the same were received in full for all cattle called for by the contract, although a smaller number; which alleged agreement, if not a modification of the original contract, was a waiver of the right to the full number therein named; and therefore the allegations of the complaint are in part necessarily dissimilar to the terms of the contract; as they set up the receipt of and a promise to pay for a different and smaller number than is named in the contract, which was an agreement between the plaintiffs and the defendants, of the date alleged in the complaint, for the sale and delivery of about nineteen hundred head of cattle, in classes and for prices therein stated; and does not tend to prove the entire scope and meaning of all the allegations of the complaint; but to the extent that it tends to prove any of them, it is material and was properly admitted in evidence, although it contained provisions not material to the issue. That would not be a variance unless it operated as a surprise, or misled the defendants to their detriment, and this was hardly possible, as they set up and pleaded the contract themselves.

The allegation in the complaint, that the defendants received and the plaintiff's delivered to the defendants all of the said cattle agreed by them to be delivered, is not an allegation setting forth any part of, or is it descriptive of, the contract, but rather pertains to the fulfillment or execution of the contract; and the acceptance of Whitney, one of the defendant partners, of the cattle at the time collected, and the evidence tending to show a release by him of the plaintiff's from the delivery of any more than was already collected, accompanied with the promise to pay for those collected, was testimony from which might well be found a waiver of the right of a further performance of the contract, and the delivery to the defendants of more cattle than was then collected, and that all deficiencies were then waived: Peck v. United States, 102 U. S. 64; West v. Platt, 127 Mass. 367.

The fact that some of the cattle delivered were bulls and stags makes no difference with the merits; as the defendants accepted and promised to pay for them, they were properly

included in the number alleged by the plaintiffs to have been delivered and accepted; and whether the plaintiff stated in the complaint that some of them were cattle of this description, or not, is immaterial, as the defendants were manifestly not misled or surprised by the omission of such allegation.

The claim that "the referee erred in finding as a fact that the said contract was substantially performed on the part of the plaintiffs" is immaterial, and even if not supported by the facts of the case, is not error to the injury of the defendants: Kisling v. Shaw, 33 Cal. 425-446.

The judgment of the district court is affirmed.

HUNTER, C. J., and EMERSON, J., concurred.

ROACH v. GILMER ET AL.

ACCOUNT SETTLED, ERRORS IN, HOW CORRECTED.-In an action in assumpsit
for work and labor performed, the defendant having pleaded and proved
a statement of the account therefor, and a settlement and payment in full,
the plaintiff can not avoid the settlement for mistakes in the items of
the account settled. This can be done only by an action to surcharge
and falsify the account.
UNLIQUIDATED DEMAND, EFFECT OF SETTLEMENT OF.-A payment made and
accepted as an adjustment of an unsettled or unliquidated demand will
operate as a satisfaction, although shown to be much less than the creditor
was entitled to receive and would have received had he brought an
action; and although, at the time of the settlement, the creditor objects
to some of the items of the account as finally settled. The creditor can
not accept a sum certain, tendered in satisfaction of an unliquidated debt
or demand, and avoid the conditions upon which it is tendered, on the
ground that he dissented at the time.

THE APPELLATE COURT WILL NOT REVISE THE ACTION OF THE TRIAL COURT
in awarding a new trial for insufficiency of evidence to justify the ver-
dict, where the evidence is conflicting.

THE EVIDENCE IN THIS CASE EXAMINED AND HELD TO BE INSUFFICIENT to support the verdict.

APPEAL from the third district court. The opinion states the facts.

Arthur Brown, for the appellant.

A payment of a part of the sum which is conceded to be due in money can not be an accord and satisfaction for the

3 389

24 503

3 389 25 166

whole sum: 27 Cal. 611; 12 Gray, 343; 10 Cush. 48; 12 Met. 551; 20 Conn. 559; 38 Pa. St. 149; 2 Parsons on Contracts, 685; 2 Greenl. Ev., sec. 28 et seq.

An account stated is not a more solemn instrument than a promissory note; it need not be any instrument at all; it is the meeting of the minds of two parties on the balance due. If the minds of the parties never met, that is, if one of them never assented to it or accepted it, it never could be anything that could be called an account stated. I refer to the cases cited by the other side, among others, 31 N. Y. 499; 11 Id. 170.

If plaintiff even agreed to the items of the account, and to the balance of the liquidated account, and the balance agreed upon was eight hundred and eighty-five dollars, when in truth and in fact the true balance of such liquidated account was four thousand four hundred dollars, then there would be no consideration for accepting a lesser sum, and plaintiff could recover the whole amount due, less credits proven. See cases above; 1 Nev. 116; 6 Gray, 513; 75 Pa. St. 245; 120 Mass. 67; 37 Am. Rep. 302; 81 N. Y. 171; 54 Id. 432.

It is objected here that we could not dispute this paper that had some account on the top of it and a receipt on the bottom. There is no peculiar sanctity about an account, and a receipt may always be disputed, whether it occurs in a promissory note, in an account, in a deed, or any other instrument: 2 Wharton on Ev., sec. 1864; Smith v. Holland, 61 N. Y. 635. Bennett, Harkness & Kirkpatrick, for the respondent.

In law the plaintiff could avoid the bar of the accounting and settlement only by showing there was fraud in procuring the settlement or mistake in giving the receipt. If he could do this, the acknowledgment would amount to nothing except as to the amount of money he admitted receiving-it would be no settlement. If he failed in this, the settlement was a complete bar. It was not open to him in this form of action to avoid or effect the settlement only as to errors or mistakes in the items of the accounts settled; this would admit a settlement, and seek to open it by rebutting evidence for errors or mistakes not pointed out in the complaint.

An account stated (even before the balance is paid) is a bar

to an action at law on the original items, and can only be opened, as to the items, by an action brought for that purpose, and specifically pointing out the errors arising from fraud or mistake. The primary issue is upon the fraud or mistake, and if the evidence is sufficient to prove the affirmative of the issue, the court opens the accounting to the extent the proof requires, and takes or orders a new statement rectifying the errors charged in the complaint, so far as proved, but in behalf of the plaintiff goes no further. In cases of gross frauds in the items, the court, if it is prayed, sometimes opens the whole accounting. These general principles are established by very numerous cases, of which a few only will be cited: 1 Daniell's Ch. Pr. 665-669; Id., 371; Pomeroy's Eq. Jur., sec. 1421; Chappedelaine v. Dechenaux, 4 Cranch, 306; 2 Edw. Ch. 1, 293; 11 N. Y. 170; 31 Id. 498; 55 Wis. 93, 650; 7 Paige, 573; 41 Am. Dec. 60; 9 Cal. 353; 13 Id. 159.

The defendant's answer and evidence went further than a mere accounting; they set up and proved prima facie a settlement and satisfaction of a disputed matter, and this was a complete bar, unless the settlement was annulled for fraud. The facts proved included both an accounting and an accord and satisfaction. While payment of a less sum will not be a bar to a larger debt, though receipted in full, if the larger sum be fully liquidated, due, and acknowledged, yet if the amount be disputed, or if a new consideration or possible legal benefit or advantage arise out of the payment of the smaller sum, the accord is complete. Giving a check or a promissory note for a smaller agreed sum is held sufficient on an open account. They import a consideration, and change the burden of proof: Wharton on Contracts, sec. 1001; 1 Sutherland on Damages, 428.

The plaintiff's own evidence shows there was a 'dispute as to the amount due, and he received a check for the balance.

The effect of a settlement in such cases is sufficiently shown. by these cases: Palmerton v. Huxford, 4 Denio, 166; 7 Cow. 231; 9 Cal. 353.

The fourth instruction requested by defendants should have been given. Though not as full as it should have been, it would have informed the jury that it was not the accuracy of the accounts or of the balance that was in controversy, but