Arkansas. Barham v. Bank, 94 Ark. 158, 27 L. R. A. (N.S.) 439, 126 S. W. 394; Barham v. Kizzia, 100 Ark. 251, 140 S. W. 6.

Colorado. Colorado Tent & Awning Co. v. Denver Country Club, - Colo. - , 176 Pac. 494; Stanley-Thompson Liquor Co. v. Southern Colorado Mercantile Co., - Colo. - , 178 Pac. 577.

Illinois. Canton Union Coal Co. v. Parlin & Orendorff Co., 215 111. 244, 106 Am. St. Rep. 162, 74 N. E. 143.

Iowa. Sparks v. Spaulding Mfg. Co., 158 Ia. 491, 139 N. W. 1083; Shahan v. Bayer Vehicle Co., 179 Ia. 923, 162 N. W. 221.

Kansas. Neely v. Thompson, 68 Kan. 193, 75 Pac. 117.

Kentucky. Cunningham v. Standard Constr. Co., 134 Ky. 198, 110 S. W. 765.

Mississippi. Cooper v. Yazoo & M. Valley R. Co., 82 Miss. 634, 35 So. 162.

Missouri. Pollman & Bros. Coal & Sprinkling Co. v. St. Louis, 145 Mo. 651, 47 S. W. 563.

Nebraska. T. M. Partridge Lumber Co. v. Phelps-Burruss Lumber & Coal Co., 91 Neb. 396, 136 N. W. 65.

New York. Nassoiy v. Tomlinson, 148 N. Y. 326, 51 Am. St. Rep. 695, 42 N. E. 715.

North Carolina. Petit v. Woodlief, 115 N. Car. 120, 20 S. W. 208.

Ohio. Seeds Grain & Hay Co. v. Conger, 83 O. S. 160, 32 L. R. A. (N.S.) 380, 93 N. E. 892.

Pennsylvania. Washington Natural Gas Co. v. Johnson, 123 Pa. St. 576, 10 Am. St. Rep. 553, 16 Atl. 799.

Rhode Island. Hull v. Johnson, 22 R. I. 66, 46 Atl. 182.

Wisconsin. Thomas v. Columbia Phonograph Co., 144 Wis. 470, 129 N. W. 522.

The same result follows acceptance of a tender of money. Potter v. Douglass, 44 Conn. 541.

5 Arkansas. Barham v. Bank, 94 Ark. 158, 27 L. R. A. (N.S.) 439, 126 S. W. 394.

Illinois. Ostrander v. Scott, 161 111. 339, 43 N. E. 1089.

Kansas. Neely v. Thompson, 68 Kan. 193, 75 Pac. 117.

Kentucky. Cunningham v. Standard Constr. Co., 134 Ky. 198, 119 S. W. 765.

In some jurisdictions it is held that sending a check which purports to be in full, or which is accompanied by a receipt which purports to be in full, is not of itself an offer of an accord, even though there was a dispute over the rights and liabilities of the parties arising out of the transaction in settlement of which such check is sent and received.8 If A holds B 's note, it is held that B's act in sending to A a receipted bill for a claim which B asserts against A, together with an amount of money which when added to the amount shown in the receipt equals the amount due on the note, is not an offer of an accord, and A's act in accepting such payment is not an acceptance.9 If B sends to A a voucher, check and receipt for goods sold by A to B, deducting therefrom the loss due to delay in performance on A's part, A's act in accepting and making use of such check is held not to amount to an accord and satisfaction, since B's communication did not amount to an offer thereof.10

Maryland. Scheffenacker v. Hoopes. 118 Md. 1ll, 29 L. R. A. (N.S.) 205, 77 Atl. 130.

Michigan. Tanner v. Merrill, 108 Mich. 53, 62 Am. St. Rep. 087, 31 L. R. A. 171, 65 N. W. 664.

Missouri. Pollman & Bros. Coal & Sprinkling Co. v. St. Louis, 145 Mo. 651, 47 S. W. 563.

Nebraska. Treat v. Price, 47 Neb. 875, 66 X. W. 834.

New York. Naseoiy v. Tomlinson. 148 N. Y. 326, 51 Am. St. Rep. 605, 42 N. E. 715.

Ohio. Seeds Grain & Hay Co. v. Conger. 83 O. S. 169, 32 L. R. A. (X. S.) 380, 93 N. E. 892.

Rhode Island. Hull v. Johnson, 22 R. I. 66, 46 Atl. 182.

6 Seeds Grain & Hay Co. v. Conger, 83 O. S. 169, 32 L. R. A. (N.S.) 380, 93 N. E. 892,

7 Scheffenacker v. Hoopes. 113 Md. 111, 29 L. R. A. (N.S.) 205, 77 Atl. L30.

8 Ziegler v. McFarland, 147 Pa. St. 607, 23 Atl. 1045; Dimmick v. Banning, 256 Pa. St. 295, 100 Atl. 871.

"The circumstances under which the payment by defendants was made and accepted do not constitute an accord and satisfaction of the whole balance due plaintiffs. The mere fact that a creditor receives less than the amount claimed with knowledge that the debtor denies indebtedness beyond that amount, does not in itself constitute an accord and satisfaction. Amsler v. McClure, 238 Pa. 409, 414. To establish accord and satisfaction, payment should be offered in full satisfaction of the demand and be accompanied by acts and declarations amounting to express notice that the payment is conditional and if accepted must be received in satisfaction of the claim. Societe Anonyme Pour La Fabrication De La Soie De Chardonnet v. Loeb, Lipper & Co., 239 Pa. 264; Foye v. Lilley Coal & Coke Co., 251 Pa. 409, 417. The letter written by defendants contained an account and concluded with the statement, 'We therefore oeg to enclose herewith voucher and check for $2,042.51, being the difference between our loss of $13,561.70 and your invoices of May and June shipments. Kindly sign voucher, returning same, and oblige.' The check was in the ordinary form. The voucher merely set forth the items showing the balance due from defendants, from which was deducted the amount claimed by them as damages. The receipt at the end was in full for the above account.' This is the only clause on which a claim of accord and satisfaction can be based. We find no express statement in the letter or elsewhere to the effect that the check, if accepted, would be considered as a compromise of the claim, or that it was tendered as such, or that acceptance thereof would be considered a waiver 6f plaintiffs' right to the ba>ance of their claim. On the contrary, the letter expressly states the payment was made in settlement of 'the difference between' the amount of the plaintiffs' claim and defendants' loss. In view of this statement, the clause in the receipt reciting the check to be 'in full for the above account,' merely amounts to a receipt in full for the balance of the account and leaves no room for the contention of a tender as a compromise in settlement of the entire claim of plaintiffs. The letter and receipt together, therefore, lacked the essential element of notice of a tender in full satisfaction of plaintiffs' claim. This may in fact have been the intention of defendants. The burden, however, was on them to expressly inform plaintiffs of such intention, either by express words or by circumstances conclusively establishing such intention. Not having done so, their check was merely a payment of part of the undisputed claim and does not bar plaintiffs from suing for the balance. The case on its facts is similar to Ziegler v. McFarland, 147 Pa. 607, where plaintiff held defendant's note given for the purchase-money of a horse, and in paying the note defendant remitted a certain sum in cash and a receipted bill for the use of the horse while in plaintiff's hands, the two amounts aggregating the face of the note. There was no express statement, however, that payment was made on condition that the amount remitted should be accepted in full for the note, and it was held there was no accord and satisfaction. Polin v. Weisbrot, 52 Pa. Superior Ct. 312, was a dispute over the correct amount of plaintiff's bill and the communication stated the accompanying check was sent in settlement of the account in accordance with the statement submitted, with the words at the bottom, 'Please receipt and return.' In the present case the letter merely contained notice that the check was in payment of 'the difference between' plaintiffs' account which was admitted and a demand arising by way of set-off or counterclaim. Under these circumstances we must hold the notice to plaintiffs was insufficient to establish an acceptance of the check as a payment of the balance of their claim."' Dimmick v. Banning, 256 Pa. St. 295, 100 Atl. 871.

In some jurisdictions language has been used which seems to indicate that the court believes that even if the offer of accord which accompanies the check or which is incorporated therein is unequivocal, and is by its terms to be in full settlement of the existing dispute, the party to whom the check is sent may make use of such check, and yet may avoid the effect of such act as an acceptance of such offer by notifying the adversary party that he does not accept such offer of accord.11 It is possible to explain most of these cases, however, on the theory of consideration, since there was either no genuine dispute and the claim was liquidated, or else the amount of the check was no greater than the amount which was conceded to be due from the party by whom it was sent.12

9 Zeigler v. McFarland, 147 Pa. St. 607, 23 Atl. 1045.

10 Dimmick v. Banning, 256 Pa. St. 295, 100 Atl. 871.