ny-and send their check for $40 to cover rental on the 4-acre-surface."

Upon receipt of this letter defendant's manager sent for plaintiff, advised him that he had spent more than $3,000 in improvements upon his premises, most of which were of a permanent character, and asked him, in view of these expenditures, and in view of the fact that they were operating the mines upon his land to his advantage, that he waive the rent upon the 4-acre tract, and the testimony on behalf of defendant tended to show that plaintiff consented to do so. The judgment of the court in favor of defendant is based upon this waiver of rent made by plaintiff. Plaintiff made no further claim for rent until this action was brought in April, 1924, though he was repeatedly with the representatives of defendant and transacted business with them during that time.

Appellants argue that the evidence does not support the judgment of the court upon this question. It is true that plaintiff and defendant's manager did not agree as to the details of that conversation. But the question of whether there was a waiver is a question of fact, or a mixed question of law and fact (40 Cyc. 270), and the trial court's conclusion thereon, based upon competent evidence, will not be disturbed.

Appellant argues that, even if an agreement was made in July, 1920, for a waiver of rent on the 4-acre tract for an indefinite time for the reason stated, such agreement was not binding for a lack of consideration. This is really the only law question in the case. Treating this as a waiver of rent, a consideration is not necessary in all cases to sup

port a waiver, it being a mere voluntary relinquishment of a known right. 40 Cyc. 263; Stewart v. Leonard, 103 Me. 128, 68 Atl. 638; Clark v. Dye, 158 Minn. 217, 197 N. W. 209; Alsens American Portland Cement Works v. Degnon Contracting Co. 222 N. Y. 34, 118 N. E. 210; Richmond Leather Mfg. Co. v. Fawcett, 130 Va. 484, 107 S. E. 800; Schwab Safe & Lock Co. v. Snow, 47 Utah, 199, 152 Pac. 171; Propst v. Williams Hanley Co. 94 Or. 397, 185 Pac. 766; Hawkins v. Smith, 35 Idaho, 349, 205 Pac. 188.

pre

Contracts

consideration.

Even if a consideration were required, there is nothing in the law to prevent the plaintiff from regard- landlord's ing permanent im- waiver of rentprovements, viously made, greatly in excess of the sum originally contemplated, as being a sufficient consideration for a waiver of the payment of rents. Brick Co. v. Cerebus Oil Co. 79 Kan. 603, 100 Pac. 631. Plaintiff's letter of July 13, 1920, discloses that he recognized a reason existed for waiver of rents for one year longer than originally contemplated, and no reason suggests itself why, when plaintiff learned from his talk with defendant's manager a few days after writing this letter that the improvements had in fact cost more than $3,000, he could not further waive the payment of rents, in consideration of such improvements, for such time as he chose to do so. The fact that he made no further claim for rents until this action was brought indicates that he waived it up to that time. And this was the judgment of the trial court.

There is no error in the case, and the judgment of the court below is affirmed.

An examination of the cases decided since the preparation of the earlier annotation has disclosed no other

shown the numbers of the cars in which the rice was shipped and the proceeds of the sale. This statement was preceded by a printed notation on the check reading as follows: "Items covered by this check. In full settlement following cars as per Wt. sheet attached."

The check was for $2,967.15, and was payable to the joint order of J. L. Landers and the Bank of Harrisburg. The rice was owned by appellees A. H. Landers and his brother, who were copartners under the firm name of Landers Bros. The check was made payable in this way for the reason that the bank had a mortgage on the rice. A. H. Landers testified that he advised the bank of the sale and informed the cashier that the check would be sent to the bank, and directed the cashier, when the check came, to indorse it and collect it and apply the proceeds thereof to the indebtedness secured by the mortgage.

The cashier of the bank did not know what the terms of the sale were, so, when the check was received by him, he indorsed the names of both payees, and in due course collected the check and applied the proceeds thereof as directed.

Appellee A. H. Landers had the rice in charge for the firm of which he was a member, and was not in Harrisburg when the check was received by the bank. He returned to Harrisburg about three days after the check had been received and indorsed, and was then told by the cashier what the amount of the check was. Landers stated, at the time he received this information, that a mistake had been made, and he immediately called appellant over the long-distance telephone and inquired why he had not been allowed $1 per bushel for his rice in accordance with the contract of sale. The representative of appellant denied that appellant had agreed to pay $1 per bushel for the rice, and testified that the rice was shipped to be sold. at the market price, and that the

market price had been paid and the rice accounted for on that basis.

Within a few days after this conversation occurred, Landers went to Memphis and demanded a settlement on the basis of $1 per bushel. Appellant's manager insisted that appellant had not agreed to pay $1 per bushel, that the sale had been made subject to inspection in Memphis, and that upon inspection it was found that the quality of the rice was poor, the rice was badly mixed, and some of it was actually rotten. The manager testified that he produced and exhibited to Landers samples of the rice, which confirmed the inspection, and he further testified that the rice was all in the warehouse, and he proposed to deliver the rice back to Landers if he were not satisfied with the in

spection and the price.

Landers admitted that this offer was made to him, but he testified that the rice shown him was not his rice, and that he knew it was not his from the kind of sacks from which it was taken; these sacks being unlike those in which his rice was shipped.

H. H. Rowe testified that before the rice was shipped he was employed as a buyer for appellant, and that he inspected the rice and found it in good condition, and that he communicated to appellant the result of his inspection as to samples and grade. A rice buyer for another dealer testified that he too inspected appellees' rice and offered $1.03 per bushel for the rice, but that his offer was declined for the reason that the rice had already been sold to appellant.

The cashier of the bank who indorsed the check testified that at the time he indorsed it he did not know there was or would be any question about the correctness thereof.

The jury returned a verdict for appellees for the amount sued for, thus indicating a finding that the rice had been sold at $1 per bushel, and from the judgment pronounced on this verdict is this appeal.

At the trial, appellant requested

only two instructions; one being a request that the jury be directed to return a verdict in its favor. The second instruction requested by appellant reads as follows: "(2) If you find from a preponderance of the evidence that A. H. Landers told Tom Flournoy, cashier of the Harrisburg State Bank, that he had sold his rice to the Standard Rice Company and that that company would send a check to the bank for the proceeds of same and when said check came to indorse it and credit him with the proceeds of it, and if you further find from the evidence that Flournoy did that, you will return a verdict for defendant, although Landers may not have told Flournoy of the contract between himself and the defendant rice company."

Both of these instructions were refused, and exceptions were saved to the refusal, and exceptions were also saved to the instructions given.

Appellant states the issue presented by this appeal as follows: "The question to be determined by this court may be concretely stated as follows: Did the court correctly declare the law with reference to the appellant's plea of accord and satisfaction? If it did, the judgment in this case should be affirmed; if it did not, the judgment should be reversed and the cause dismissed."

The court told the jury that there had been no accord and satisfaction, for the reason that the undisputed evidence showed the fact to be that the cashier did not know there was a controversy about the price of the rice and had not been authorized to indorse the check for an incorrect amount, and then submitted to the jury the question of fact as to what the terms of the sale were. In these instructions the court told the jury that, if the rice had been sold for $1 per bushel, to return a verdict for appellees for the amount sued for, as there was no controversy about the quantity, but that, if the 46 A.L.R.-96.

sale had not been made for that price, to find the market value of the rice and to credit the amount of the check thereon.

We do not find it necessary to determine what effect should be given the language printed on the check quoted above for the following reasons: In authorizing the bank cashier to indorse the check, Landers assumed that it would be drawn for the correct amount, as found by the jury, and the cashier did not know it was not for the correct amount. As soon as it was discovered that the check did not cover the contract price, Landers refused to receive it as payment in full. That the cashier had no authority to adjust a controversy, had he known that one existed or would arise, is an undisputed fact in the case. It is also an undisputed fact that appellees sold the rice to appellant, and the question of fact, at what price the rice had been sold, is settled by the verdict of the jury, and under the testimony the jury might have found that the market price was even greater than the price sued for, as there was testimony that appellees had refused an offer of $1.03 per bushel, for the reason that it had previously been sold to appellant for $1. The face of the check was for an amount which appellant admitted owing appellees, and the check itself was never received by them or by their authority in settlement of the true price of the rice. It is true the proceeds of the check had been credited to their account at the bank, but it is true also that this money belonged to them according to appellant's own testimony.

There was therefore no accord and satisfaction, and the testimony fully sustains

satisfaction

the finding that the Accord and rice had been sold indorsement of check by bank for $1 per bushel, cashier. and the judgment of the court below will therefore be affirmed.

The question under annotation lies within a narrow compass. It presupposes, on one hand, that the agent had no authority to compromise or adjust the claim in settlement of which the paper was taken, and, upon the other hand, that he did have general authority to indorse and transfer commercial paper received in settlement of claims, and upon that hypothesis considers the effect on the question of accord and satisfaction of his indorsement and transfer of paper received upon a compromise or adjustment which he had no authority to make. The reported case (STANDARD RICE Co. v. LANDERS, ante, 1519) denies an accord and satisfaction in such circumstances.

In London Guarantee & Acci. Co. v. Riley (1924) 32 Ga. App. 579, 124 S. E. 142, where the agents of a payee of a bank check, bearing an indorsement that it was acknowledged by the payee as payment of all claims against the maker, received and deposited the same in a bank to the credit of the payee, who did not tender the proceeds back to the maker, but collected and applied the same to his own use, it was held that the payee accepted payment for the amount evidenced by the check in full satisfaction of all claims against the maker, and this although the agents of the payee may not have had authority to bind him to an agreement in satisfaction of the claim.

But in Jennings v. South Whitley Hoop Co. (1912) 50 Ind. App. 241, 98 N. E. 194, the appellant was the sole owner of two wholesale cooperage concerns, doing business under different names in two cities; the appellee transacted business with both concerns, but without knowledge that appellant was sole owner; a claim against one of appellant's companies was placed in the hands of appellee's attorneys for collection, and they, without knowledge of the relation of appellant to

both companies, and through misapprehension, misunderstanding, and mistake, mistake, accepted and collected a check from him for the amount of this claim, in full satisfaction of all claims of appellees against both concerns; the appellant was also indebted to appellees on account of the second company, but this claim was in dispute, and of it the attorneys had no knowledge. It was contended, however, that the acceptance and cashing of the check by the attorneys of appellees effected an accord and satisfaction of all obligations on account of both concerns. It was held that the attorneys had no power to compromise, but only had authority to collect the particular claim placed in their hands, and, under the circumstances, no accord and satisfaction could be predicated on acts done pursuant to this limited authority.

And in Pekin Cooperage Co. v. Gibbs (1914) 114 Ark. 559, 170 S. W. 574, a check payable to the order of the agent of Gibbs was tendered and received in satisfaction of a claim against the maker, the check afterwards being cashed and credited by the agent to the account of Gibbs, who made no complaint about the action except that the check should not have been received in full satisfaction of the claim, nor did he direct the return of the check or its proceeds, and no such tender was ever made. It was claimed that the transaction effectuated an accord and satisfaction, and it was so held by the court, which said, in part: "There was a valid accord and satisfaction in this case, and . . . appellees, not having returned or tendered the amount of the check, will be held to have accepted it in full satisfaction of this demand."

While the foregoing seem to be the only reported cases precisely in point, there are a few which it may be helpful to distinguish.