The plaintiff delivered certain cross-ties upon defendant’s right of way at an agreed price. Subsequently the defendant reduced the price of ties, and thereafter inspected and accepted plaintiff’s ties and offered to pay the reduced price. This the plaintiff declined to accept. There was no dispute as to the number of ties.
The plaintiff, being indebted to the bank, told the defendant to send a statement and certificate of the amount due him to -said bank. The account, when rendered, was for the proper number of ties, but calculated at the reduced rate and totaling $316.20, being $73 less than the amount due on the basis of the contract price. The plaintiff notified both the defendant and the bank that he would accept said sum only in part payment. The bank receipted in full “of above account.”
The defendant introduced no evidence that the plaintiff ever intended or agreed to acceqit less than the contract price. The evidence is plenary and uncontradicted that he did not. The *523account rendered was no more than an admission by tbe defendant tbat it owed plaintiff $316.20. Tbe bank’s receipt was only for tbe “above account,” i. e., for tbe amount due upon tbat admission. It did not purport to be in full of plaintiff’s demands, and bad it been it would bave been unauthorized. Tbe defendant showed no'such authority, and, indeed, tbe evidence of the bank and of the plaintiff was tbat tbe plaintiff refused to authorize tbe acceptance of tbe $316.20, except as part payment.
This ease is totally different from Kerr v. Sanders, 122 N. C., 635, and the cases cited under it in the annotated edition. There a check was sent the creditor, reciting in tbe face of it “in full for services.” This tbe defendant endorsed and cashed, thereby accepting it as full settlement. A later case is Armstrong v. Lonon, 149 N. C., 435.
No error.