(after stating the case). The first exception to the ruling of the referee was the overruling defendant’s objections to questions one and five asked witness R. B. Pee-bles by plaintiff, and admitting his answers, relating to the collection of the notes executed by Drewitt to Long. This objection was based upon the ground, that the witness was incompetent to testify to anything connected with the notes, they having been executed prior to August, 1868, and the *188witness having had an interest in them, or in the collection of them.
This objection cannot be sustained. The compensation to which the witness was entitled for his services as counsel, gave him no such interest in the notes, as would disqualify him. Slocum v. Newby, 1 Murphy, 423; Molyneux v. Huey, 81 N. C., 106; Syme v. Broughton, 85 N. C., 367; Borden v. Gully, 92 N. C., 127; and White, Adm’r, v. Beaman, Ext’r, decided at this Term.
The second objection was to the admission of the deed from J. D. Vinson to W. T. Stephenson, and the deed from the said Stephenson to Lawrence Lassiter.
It is admitted that the deed from Vinson to Stephenson (dated August 20th, 1875, for $600,) is for the same land as that conveyed by W. T. Stephenson, as administrator of Drewitt, to J. D. Vinson, and it was clearly relevant as tending to show, the true character of the transaction.
The third objection was to the question asked R. T. Stephenson in regard to the transfer of his bid, and to the answer that it was assigned to J. D. Vinson at the request of W. T. Stephenson.
This, like the last, was admissible as tending to show the true character of the transaction.
The same witness was asked if he had not been in the habit of attending sales of land conducted by executors, administrators guardians, &c., and if he did not know that it was customary with them to get some friend to run up property, so as to prevent it from being sacrificed by an inadequate price, and if he did not know from his own experience and observation, that this has been often done by conscientious and honest men conducting such sales.
These questions were excluded as irrelevant and immaterial, and this is also assigned as error by the defendant. We suppose it was the purpose of the defendant, to show the *189good faith of his testator, by showing that other fiduciaries, had, under similar circumstances, acted as he had. In no view of this case can we conceive such evidence as relevant or competent, and there was no error in overruling the objection.
There were numerous other exceptions to the ruling of the referee upon questions asked by the defendant and objected to by the plaintiff, and to questions asked by the-plaintiff and objected to by the defendant, which were immaterial and irrelevant, and which we deem it unnecessary to pass upon more particularly.
After a careful examination, we find no error in the judgment of the Court below in sustaining the ruling of the-referee upon points of evidence and his findings of facts. But exception is taken “to all of the referee’s conclusions of law, and to all he decides.”
“For that the plea in bar set up by the defendant should first have been decided by a jury before reference was ordered, and he demands that his said plea in bar shall be tried by a jury. He should have found that the plaintiff was barred of recovery by Wright’s settlement with Hughes.”
This was the point chiefly relied upon by the defendant in this Court.
First, as to the demand that the defendant’s plea in bar shall be tried by a jury. Undoubtedly the defendant had a right to have his plea in bar, or any other issue of fact, passed upon by a jury, but this right may be waived, as authorized by Art. iv., §13 of the Constitution. Was it waived ?
The order of reference was made at Fall Term, 1884, without objection, but the defendant says, “before his plea in bar was passed upon by the jury.” If he wished to have it passed upon by a jury, he should have claimed the right before the reference was ordered, for when matter in bar is relied on, it ought to be determined before the reference is had. It puts in issue the very cause of action, and *190the defendant has a right to have it first passed upon, because, if decided in his favor, the delay and expense of a reference may be avoided. Clements v. Rogers, 95 N. C., 248; Neal v. Becknell, 85 N. C., 299; Commissioners of Wake v. City of Raleigh, 88 N. C., 126.
While the record does not show that the reference was by consent, the order was made by the Court, without objection or opposition, and this was .equivalent to assent and a waiver. Atkinson v. Whitehead, 77 N. C., 418.
If, at the time the order of reference was made, the defendant reserved the right, as was done in the case of McPeters v. Ray, 85 N. C., 462, to have the issue passed upon by the jury, it would have availed him; but this was not done, and if the suggestions had been made, it would have been at once apparent in this case, that the issue should, if insisted upon, be determined by a jury before' the reference, and if refused, an appeal would lie.
It was earnestly insisted that the receipt given by Wright, administrator, &c., to Hughes, executor, &c., was conclusive, if not as a receipt, then as an accord and satisfaction, and we were referred to numerous authorities to sustain this view. We regard it as well settled, that parol evidence is inadmissible to vary or contradict a written agreement or contract, and we regard it as equally well settled, that if a debtor or obligor pay a less sum than is due, either before the day it is due, or, for the convenience of the payee or obligee, at a place other than that named, or upon any consideration advantageous to the payee or obligee, or as a compromise upon an honest difference as to the amount due, it is good as an accord and satisfaction, and binding; and we think the authorities relied on by the defendant do not go beyond this.
In Smith v. Brown, 3 Hawks, 580 ; relied on by the defendant, the written paper contained something more than amere receipt for money. Taylor, C. J., said : “ It is true, that by *191a variety of decisions, receipts do not appear to be subject to the operation of the rule, (the rule excluding parol evidence), because they do not contain evidence of a contract, but when, in addition to the receipts for money, a condition is added upon which alone a party shall become liable to a further payment, it assumes the nature of a contract, and must be governed by the same rule of evidence.” So in McCullen v. Hood, 3 Dev. 219 ; it was held that a receipt for a specific sum was not even prima facie evidence of accord and satisfaction. If the receipt had expressed that it was in full, “ an inference,” says Henderson, C. J., “ might be drawn that it was in full satisfaction.” It would have been evidence of satisfaction, but not conclusive. It was held not to be even evidence of a final settlement in the case of At., Tenn. & Ohio R. R. v. Morrison, 82 N. C., 141; and when fraud or mistake is alleged, it is never conclusive. Costin v. Baxter, 6 Ire. Eq., 197; James v. Mathews, 5 Jones Eq., 28; Compton v. Culberson, 2 Dev. Eq., 93.
The objection, “that the Court, of its own motion, at ■Fall Term, 1884, ordered the reference before the defendant’s plea in bar had been passed upon by a jury,” cannot be sustained, for causes already stated. The defendant had a right to object to the reference for the cause stated, at the time it was made, and it would have been valid; and if denied, it would have been the subject of appeal, but this was not done, and the result of the reference cannot be annulled by giving-heed to the objection after the referee had made his report.
IV and Y. “ Because the judgment is contrary to the law and evidence of the case,” and “ for any and all other errors appearing from the record.”
We think the finding of fact by the referee and his report in relation thereto, was properly confirmed by the Court below, and must be affirmed by this Court.
Was there error in the judgment upon the facts found? The estate of the defendant’s testator is charged with the *192sum of $1,000, for which he had sold the land to Lassiter. This sale was made payable in five annual installments, and the report shows that about $750 of the purchase money is still unpaid, and, it may be, cannot be collected. The evidence shows that it was more than the land was fairly worth, and as the money has not all been collected, we think the better and more equitable rule would be to charge the estate of the defendant’s testator with the value of the land, which the referee finds to be $750. Thus modified, the defendant executor would be charged $750, as the proceeds of the sale of land, instead of $500, as in the account, or $1,000, as in the judgment, and crediting the account with $225, the amount actually paid for the Long notes, and $35.66 interest thereon, instead of $470.01, as wrongfully credited in the account, the whole amount charged against the defendant executor would be $1,056.41, instead of $806.41, as in the account filed with the report of the referee, and the amount of his credit would be $597.06 instead of $806.41, as appears, in said account. This would leave a balance of $459.35 due to the plaintiff administrator from the defendant executor, with interest from the 14th day of November, 1877, (the date to which the account was stated,) till paid, and the plaintiff has a right to have the same secured by a lien upon the land in question.
The judgment of the Superior Court thus modified, is affirmed. It is ordered that the costs of this appeal be paid by the defendant executor. Let this be certified.
Modified. Affirmed.
Note. — The plaintiff's appeal in this case was dismissed, on the ground that the entire controversy was settled by the opinion in the defendant’s appeal.