The judgment is reversed, and the case remanded, with instructions to overrule the demurrer, and for further proceedings. principal or interest of said promissory | in the note that the interest should be paynote, or any part thereof, when the same able annually, and the court simply holds shall become due and payable, according to that the provision, "if interest be not paid the terms and conditions thereof." The note annually, to become as principal," cannot be providing for the payment of interest annu- regarded as a promise to pay interest annually, the failure to pay the interest when ally. It will thus be seen the case is not due is a default in the payment of interest, controlling when the note, as in the present and a default in the payment of interest case, contracts to pay annual interest. The subjects the mortgage to a foreclosure. court in its reasoning said: "If the interest And, making this intention still plainer, was payable annually, the default in the comes the further stipulation that, in case payment of the same makes the whole debt, of any such foreclosure, the whole of the and entitles Miller to a foreclosure of his principal and interest represented by the mortgage." In other words, if, as in the note shall be retained, even though it be not case at bar, the note made provision for the yet due. In order to be any sum "not yet payment of interest annually, a foreclosure due," the sale must be prior to the maturity could be had for its nonpayment. That we of the note and mortgage. The Bank Case, are in full accord with the Kansas rule is with the authority therein cited, is in direct plain from the reasoning of the Motsinger conflict with the ruling complained of, and | Case and from Meyer v. Graeber, 19 Kan. is of itself sufficient to support the claim 165, where the note provided for the payof error. The case, however, having been ment of interest, and the mortgage recited argued so confidently upon the authority of that the interest was payable annually, and, the Van Loo, Wood, and Motsinger Cases, if not so paid, to be added to the principal, supra, we will review those cases and show and that, in case of a default of any pay. them not to support the contention claimed.ment of principal or interest, foreclosure Van Loo v. Van Aken is a California case, might be had; and it was held that the inwhere the note, as in the case at bar, provid-terest was to be construed as payable annued for the payment of interest annually, ally, although not as stated in the note, and and, if not so paid, to draw interest the that, in case of default in its payment, the same as the principal. The mortgage, how-mortgage might be foreclosed. ever, provided for its foreclosure only in case of default at maturity. The reasoning of the court is that the mortgage is not given to secure the payment of the note according to its terms, but only as security for the payment of the principal sum and interest on the date of the maturity of the note. The mortgage in suit contains the very provision the mortgage in that case failed to contain; and hence that case is of no value to respondent. That the rule he contends for is not the law in California, but that the rule there is as we are attempting to here announce it, is clear from the following authorities: Brickell v. Batchelder, 62 Cal. 623; Maddox v. Wyman, 92 Cal. 674, 28 Pac. 838; Clemens v. Luce, 101 Cal. 435, 35 Pac. 1032; Phelps v. Mayers, 126 Cal. 549, 58 Pac. 1048. In the next case, Wood v. Whis ler, neither the notes nor mortgage provided for the payment of interest annually. They simply provided that, in case it was not so paid, it should draw interest. Manifestly, unless the notes provided for the payment of interest annually, the failure to so pay would not be a default. In the case before us, as we have before seen, the note does provide that the interest shall be annually. The case is not therefore in point. The next case is Motsinger v. Miller, from Kansas, a case similar to the Wood Case; the note providing that, if the interest was not paid annually, it should be added to the principal. There was, however, no provision Fullerton, Mount, and Ellis, JJ., con cur. NORTH DAKOTA SUPREME COURT. V. WARD COUNTY, Appt. (— N. D. 137 N. W. 486.) claims - payment County pre 1. Where unliquidated claims against a county are duly presented to its board of county commissioners for allowance, and the claims are considered together and allowed at a lump sum less than the amount claimed, and a warrant is drawn for the Headnotes by Goss, J. Note. Acceptance of partial allowance of claim by public body as an accord and satisfaction. I. Introductory, 112. II. Claims against the United States. a. Where the claim is liquidated, 112. b. Unliquidated or disputed claims in general, 113. c. Claims for rent of land or vessels, 115. an action brought to recover for professional services and supplies furnished by plaintiff for the support of the poor of Ward County. Reversed. The facts are stated in the opinion. Messrs. Dudley L. Nash and George L. Ryerson, for appellant: Where a claim against the county is presented to the board of supervisors and they allow a part of it and reject the rest, a claimant accepting the portion allowed, knowing that the rest has been rejected, cannot recover in an action the portion rejected. Brick v. Plymouth County, 63 Iowa, 462, 19 N. W. 304; Cleveland County v. Seawell, 3 Okla. 281, 41 Pac. 592; Eakin v. Nez Perces County, 4 Idaho, 131, 36 Pac. 702. undisputed debt as a consideration for the discharge of the whole, see the notes to Melroy v. Kemmerer, 11 L.R.A. (N.S.) 1018, and to Ex parte Zeigler, 21 L.R.A. (N.S.) 1005. For the effect of acceptance of remittance of part of the amount of an unliquidated or disputed claim accompanied with the statement that it is in full, or words of similar import, as assent to its receipt in full payment, see the notes to Canadian Fish Co. v. McShane, 14 L.R.A. (N.S.) 443, and to Barkam v. Bank of Delight, 27 L.R.A. (N.S.) 439. For acceptance of principal sum as affecting the right to interest, see the note to Bennett v. Federal Coal & Coke Co. 40 L.R.A. (N.S.) 588. For cases on agreement in advance to accept less than amount of appropriation, salary, or fee, see the note to Lukens v. Nye, 36 L.R.A. (N.S.) 244. II. Claims against the United States. a. Where the claim is liquidated In claims against public bodies the same two rules apply as against private debtors: Upon the right of town, county, or munic(1) That in the absence of statute the ac-ipality to surrender valid claim upon a ceptance of part payment, even when re- partial payment thereof, see the note to ceipted for in full, of the claim, is no satis- Farnsworth v. Wilbur, 19 L.R.A. (N.S.) 320. faction of a liquidated demand unless the receipt be a general release under scal; and (2) that where the claim is unliquidated or disputed, a payment and acceptance of part in compromise is a sufficient satisfaction of the whole. The main questions are therefore, first, Is the claim liquidated? second, If not, has the acceptance been with a clear understanding of the intent with which the payment was made, or under such circumstances that the receiver is estopped from denying such understanding? For convenience of arrangement the cases of claims against the United States are treated separately, except the cases upon claims for statutory salary or pay, and upon splitting demands, which will be found in the latter part of the note. The question of the acceptance of a particular medium of payment as an accord and satisfaction is not included. For the general subject of accord and satisfaction by part payment, see the note to Fuller v. Kemp, 20 L.R.A. 785. For payment of part of a liquidated and Where a claim against the United States is liquidated or undisputed, a payment of part by the government to the claimant will not be an accord and satisfaction of the part unpaid. Thus a receipt in full to the government is not a bar to a claim, where there is no dispute, but simply an arbitrary reduction of a part of a legitimate demand of the claimant. Baldwin v. United States, 15 Ct. Cl. 297. So, where a quartermaster purchased a number of horses at so much per head, and gave vouchers therefor, which, on presentation to the quartermaster general, the latter reduced by lowering the price per head, and paid the claimants the reduced amount, they giving their receipt in full, it was held that they were not concluded from prosecuting a claim against the United Messrs. George A. McGee and John E. Martin, for respondent: The unauthorized act of the overseer of the poor, in employing respondent to provide for the county charges in his district outside of the asylum, may be ratified by a subsequent resolution of the board of county commissioners, where they could have authorized him, in the first place, to engage said respondent. Hughes County v. Ward, 81 Fed. 314. The allowance of a claim in part only by the board of county commissioners is no bar to an action against said county for the balance, where no appeal has been taken from such action of the board. Goss, J., delivered the opinion of the court: This action is brought by a physician to recover for professional services and supplies furnished by him for the support of the poor of Ward county. The complaint recites the performance of services and the furnishing of supplies of the total reasonable value of $750, and that "bills in due form of law, duly verified and approved by a commissioner of the board as aforesaid, were presented to the board of county commissioners of Ward county for their consideration, and, after mutilating said bills, said board of county commissioners allowed the plaintiff herein the sum of $265, and no Campbell County v. Overby, 20 S. D. 640, more. Wherefore plaintiff prays judgment In Finney v. United States, 32 Ct. Cl. 546, where there was no real dispute upon a claim under a contract to furnish flour, it was held that the receipt of a less sum than that due, not stating that it was in full, did not bar the claimant, and that such was not the intent of the statute, which provides that "any person accepting payment under a settlement by an auditor shall be thereby precluded from obtaining a revision of such settlement as to any items upon which payment is accepted." against the defendant for the sum of $750, that the government should be held to a different rule than that which applies to private parties. In Cruger v. United States, 11 Ct. Cl. 766, where the Secretary of the Treasury had referred the claims of a contractor to a commission, which had reported against him and had decided to pay him nothing, on the ground of fraud, and Congress passed an act permitting the officers of the Treasury to go into the claim on a certain basis, and later Congress passed another act appropriating a certain specific amount which should be "in full for the balance due him," which was paid, it was held that he could b. Unliquidated or disputed claims in not claim anything further against the gov general. The acceptance of part of an unliquidated or disputed claim in payment of the whole will be an accord and satisfaction, discharging the government the same as any ordinary debtor. This rule obtains whether the claim is adjusted by commissioners of a government department, by the department itself or its Lead, or by auditing officers or other government officers. ernment. The general theory is stated in Mason v. United States, 17 Wall. 67, 21 L. ed. 564, where the court, in affirming a decision against the claimant, whose contract was modified by a commission of the War Department, requiring him to execute a bond and an amended contract, which he did, said: "Parties having claims against the United States for labor or service, or for personal property or materials furnished, which are disputed by the officers authorThe allowance of part of a contract claim, ized to adjust the accounts, may comprovoluntarily submitted to a commission ap-mise the claim and may accept a smaller pointed by the Secretary of War to pass apon claims arising in a certain military district, payment of which had been suspended because of frauds in the administration of the district, together with the receipt of the commission's voucher and acceptance of payment thereunder, pursuant to a joint resolution of Congress makThus the claimant was held concluded: ing an appropriation for the payments of -where he had voluntarily submitted his the amounts allowed by the commission, claim for furnishing rifles to a commission was held a bar to any further demand, with-appointed by the Secretary of War, and had out regard to the terms of the receipt giv-accepted a warrant for the reduced amount en by the claimant upon receiving the it allowed him. United States v. Justice, voucher. United States v. Adams, 7 Wall. 14 Wall. 535, 20 L. ed. 753; 463. 19 L. ed. 249. sum than the contract price; and where the claimant voluntarily enters into a compromise, and accepts a smaller sum, and executes a discharge in full for the whole claim, he cannot subsequently recover in the court of claims for any part of the claim voluntarily relinquished in the compromise." -upon a claim for building an ironclad, on the acceptance of a sum found due by the proper department and a receipt in full. Chouteau v. United States, 95 U. This case was followed under similar cireumstances by United States v. Mowry, 154 . S. 564, and 19 L. ed. 256, 14 Sup. Ct. | Rep. 1213, and United States v. Child, 12 S. 61, 24 L. ed. 371; Wall. 232, 20 L. ed. 360. In the latter where the Secretary of War reduced fase the court repudiated the contention a demand for special services and announced less a credit of $265." The trial court overruled a demurrer interposed on the ground that the complaint did not state facts sufficient to constitute a cause of action. From this order defendant appeals. The only deduction to be drawn from the complaint is that the county commissioners allowed $265 in full for the $750 of claims presented against the county, and that plaintiff has credited the $265 so allowed, and brought this action for the balance. This necessarily implies an accept ance by plaintiff of a warrant for county funds for the $265 allowed. Does the complaint show an executed accord and satisfaction barring plaintiff's recovery in the face of the demurrer? If this action was between private parties, we would have no his willingness to pay a certain sum, and a receipt for it was given in full for the above account. De Arnaud v. United States, 151 U. S. 483, 38 L. ed. 244, 14 Sup. Ct. Rep. 374; hesitancy in holding the demurrer not well taken, as it would not sufficiently appear that the partial payment received was under an agreement that the same should be in full for the claim and so constitute an accord. But where, as in this case, in the payment of claims by counties or municipalities, the law requires the presentation of itemized and verified claims to the board of county commissioners as the administrative and fiscal agents of the county for their approval and determination, upon the fact of whether the services were rendered and goods furnished as charged for, as well as the reasonable value thereof, and consequent approval in whole or in part before allowance, and with the requirement that said board shall order warrant in payment ceipt, a written protest, in substance that the receipt did not cover certain claims not included in the voucher on file for the amount for which the receipt is given; and stating "that the receipt in full is a receipt for the claims represented by these vouchers only." Later the claimant gave another receipt for a payment for stock supplied under the contract, which was "in full of the above account." Again, later, a voucher was made showing a balance due claimant of a certain sum, and he executed a receipt for said balance, "in full payment of the above account," accompanying it with a written protest "that it does not cover certain claims which the Cape Ann Granite Company has, which are not included in the vouchers on file for the amount of which this receipt is given; that the reIn Francis v. United States, 96 U. S. 354, ceipt in full is a receipt for claims repre24 L. ed. 663, where it was held that, un- sented by this voucher only." And it was der a contract to deliver wood to the gov-held that the claimant was not concluded ernment, by the terms of the contract the wood was to be cut beyond the reservation, it was also held that where the contractor acquiesced in the order of the commander that the wood must be cut beyond the reservation, and thereafter hauled and delivered the wood and received pay therefor inputed claim, but purporting to be in full full under the contract, giving receipts in full, it was too late to prefer such a claim against the United States. where the Secretary of the Navy adjusted a claim under an excavation contract and the claimant accepted the amount allowed, without objection. Murphy v. United States, 104 U. S. 464, 26 L. ed. 833; -where a claim was examined by the auditing officers of the government and they reported to the claimant what they considered due, with the principles upon which the adjustment had been made, and he ac-. cepted the money afterwards without objection. Baird v. United States, 96 U. S. 430, 24 L. ed. 703 (but this was a case of split demands). by these receipts. So, in Piatt v. United States (Grandin v. United States) 22 Wall. 496, 22 L. ed. 858, the court, while conceding for the purposes of the case at least, that an appropriation of less than the amount of a dis payment thereof, if accepted may bar any further demand, yet held that the allowance by accounting officers of part of the amount of an unliquidated claim, and its Necessity of actual or constructive intent application to the discharge of an amount to compromise. But where the payment is made with clear understanding that there is no relinquishment of any part of his claim by the claimant, he will not be concluded. Thus, in Cape Ann Granite Co. v. United States, 20 Ct. Cl. 1, where the contract was for the delivery of granite, the claimant gave a receipt and voucher which concluded with the following words: "In full payment of the above account, and in full of all claims that have arisen or may arise under the contracts above specified, and in final and absolute settlement of the same." At the same time, and as a part of the transaction, there was attached and filed with said re due from the claimant to the government, pursuant to an act of Congress passed for the benefit of the claimant, which expressly provided that the sum allowed should not exceed the amount claimed by the government and for which suit had been commenced against him, did not bar a further claim for an amount equal to that which the accounting officers arbitrarily deducted in order to reduce the amount of the credit to the sum due from the claimant to the government. Where contract provides for determination of amounts. Where the contract provides that a determination is to be made by the govern to issue for the full amount, and no more, at | presented. He was bound to know that a which the claim is approved, under the pre- warrant could not be issued and accordingly sumption of the regularity of official ac- tendered him as other than full payment of tion, the warrant is issued as the result of his claims, which he pleads were presented a quasi judicial finding by the board on the and considered, and for,which in toto the claim presented. Of all this plaintiff was warrant was issued. With knowledge of the conclusively presumed to have knowledge be- law thus imputed and conclusively prefore acceptance of the warrant or the cash sumed, the acceptance of the warrant operproceeds thereof, as he is bound to know the ated as an accord and satisfaction within law under which he presented his claim the provisions of §§ 5269 and 5271, Rev. and sought its allowance and under which Codes 1905. As to necessity of presentathe warrant was issued. And the pleading tion of claims and allowance of payment of the issuance of the warrant and in ef- to the amount allowed, see §§ 3162 to fect its acceptance amounts to the pleading 3166, 2393 and 2398, Rev. Codes 1905. As of an accord and satisfaction, and precludes sustaining our conclusions, see Perry v. him from claiming only partial payment Cheboygan, 55 Mich. 250, 21 N. W. 333; and thereunder crediting the amount re- Wapello County v. Sinnaman, 1 G. ceived as a partial payment on the claim Greene, 413; Brick v. Plymouth Coun ment's engineer, acceptance of the amount allowed by him in full concludes the contractor. Case v. United States, 11 Ct. Cl. 712; Newman v. United States, 81 Fed. 122. Acceptance of a smaller sum than the one claimed does not leave the defendants open to further claim, if the acceptance of the smaller sum was voluntary, without intimidation, and with full knowledge of all the circumstances." In Comstock v. United States, 9 Ct. Cl. 141 (a claim for hay seized for government use), the court said: "In the case now before us there was no express contract; there was no stipulated consideration; the payment was not evidenced by a receipt in full. Yet we cannot avoid thinking that it was made as such on the part of the government, and accepted as such on the part of the claimant." In United States v. Shrewsbury, 23 Wall. 508, 23 L. ed. 78, where an agreement to transport government stores provided that a board of survey be called at the place of delivery to examine the quantity and eondition of the stores transported, and in case of loss or deficiency, to assess the amount thereof and state whether it was attributable to the neglect of the contractor, and that the decision of such board should determine the payments to be made to the contractor; and such board report- In Brice v. United States, 32 Ct. Cl. 23, ed a deficiency to be charged to the con- where a claim was submitted to the Intetractor, and he accepted their decision and rior Department for depredation by Indians, gave a receipt in full for his account, giv- and the Secretary allowed it in part, which ing notice at time of payment that he was paid, and four years after a claim was should claim a readjustment and full pay-made for the balance, the court held that ment.-it was held that he had waived any exception which he might have taken at the proper time, and was, when the payments were made, finally concluded from further claim. the payment was received in full satisfaction and discharge of the plaintiff's claim. (It does not appear what receipts were given.) c. Claims for rent of land or vessels. Where a landlord made a claim against the United States for rent, which was contested and considered exorbitant and reduced, and on that basis settled, and the money paid over and receipted for by the claimant's attorney without protest or complaint at the time, it was held that this concluded the claimant. Gilman v. United States, 8 Ct. Cl. 520. But in United States v. Bostwick, 94 U. S. 53, 24 L. ed. 65, where the United States In St. Louis Hay & Grain Co. v. United States, 37 Ct. Cl. 281, the court said in dismissing the petition upon a claim for hay delivered to the government: "It has been uniformly held by this court since Kirk-hired for a year certain premises at so ham v. United States, supra, in cases of implied contract where the recovery will be in quantum meruit and the price to be paid sundetermined by agreement, that, where te defendant has paid and the contractor has accepted a price as payment in full, it eloses the transaction, and the contractor cannot come in and be allowed to allege that his goods were worth more than the price which he consented to take for them. much per month, and paid for the greater part of the year at that rate, but during the latter part of it paid at one half the contract rate, and all that there was to show anything about any new rate was a receipt by the landlord for the period which covered the latter part of the year and a little more, at the lower rate, it was held that, in the absence of proof showing that the reduced rate was part of an agreement |