There was evidence in behalf of the plaintiff that commissions on sales and collections were payable weekly and composed one account or item of liability, and that the indebtedness in suit was payable quarterly and constituted another account or item of liability; and that the checks and pay vouchers covered the commissions only, and did not embrace the indebtedness in suit or any part of it. In consequence, the trial court did not err in leaving it to the jury to determine whether the indebtedness in suit was included in the alleged accord and satisfaction. Youngblood v. Taylor, 198 N.C. 6, 150 S.E. 614; Standard Oil Co. v. Moore, 195 N.C. 305, 141 S.E. 926; Refining Corporation v. Sanders, 190 N.C. 203, 129 S.E. 607; Bogert v. Manufacturing Co., 172 N.C. 248, 90 S.E. 208. Notwithstanding the conclusion that the plaintiff made out a case for the jury, the defendant is entitled to a new trial on account of the ruling of the trial judge in permitting the plaintiff to introduce in evidence over the objection of defendant advertisements published in the Charlotte Observer on 23 and 26 May, 1949, purporting to emanate from the defendant and offering to employ salesmen at a beginning compensation of $100.00 per week.
Defendant pleads this check in bar of plaintiff's claim, under the principle of accord and satisfaction as announced in Hardware Co. v. Farmers Federation, 195 N.C. 702, 143 S.E. 471, and cases there cited. It appears, however, that the check of 1 August, 1927, was for the exact amount of defendant's "grocery account," and that his "dry goods account" of $183.10 was not then due. Plaintiffs' right to recover for the undisputed "dry goods account" is supported by the decisions in Oil Co. v. Moore, 195 N.C. 305, 141 S.E. 926, Refining Corp. v. Sanders, 190 N.C. 203, 129 S.E. 607, and Bogert v. Manufacturing Co., 172 N.C. 248, 90 S.E. 208. But as the dry goods account was not due until 30 December, 1927, it was error to allow interest from 21 June, 1927. This was an inadvertence, and plaintiffs consent to a modification of the judgment.
It will be observed that the Powers case, supra, and the case of Kerr v. Sanders, 122 N.C. 635, 29 S.E. 943, and that line of cases, contain no reference to a disputed account. Dispute as an essential element of accord and satisfaction in such cases apparently appeared in the law for the first time in the case of Rosser v. Bynum, 168 N.C. 340, 84 S.E. 393, and later followed in Bogert v. Mfg. Co., 172 N.C. 248, 90 S.E. 208, and cases subsequent thereto. Supply Co., v. Watt, 181 N.C. 432, 107 S.E. 451; Blanchard v. Peanut Co., 182 N.C. 20, 108 S.E. 332; DeLoache v. DeLoache, 189 N.C. 394, 127 S.E. 419; Dredging Co. v. State, 191 N.C. 243, 131 S.E. 665.
STACY, C. J. Reversed on authority of Refining Corporation v. Sanders, 190 N.C. 203, 129 S.E. 607, and Bogert v. Mfg. Co., 172 N.C. 248, 90 S.E. 208. Reversed.
See, also, Mercer v. Lumber Co., 173 N.C. 49. Plaintiff contends that the correctness of the grocery account was not in dispute and that the principles of accord and satisfaction are therefore not applicable to the facts here presented ( Bogert v. Mfg. Co., 172 N.C. 248), but we must view the case in all of its bearings. The parties were caviling as to whether any allowance should be made for damages to defendant's automobile in settling the store account.