by Sexsmith, and by the further observation made by Jenal "that there was no doubt existing as to who was to pay him,' "defendant spoke evasively and stated that he was willing to "donate" Jenal $500 and that "the Petz boys ought to come through, too; the Petz boys ought to make up the rest, or some." And so, too, when Jenal said: "I did not think there was any question as to whom was to take care of me," Lane replied, "I want this to net me $28,000." Lane made no claim that the understanding of the parties was different from what was contended for by Jenal, and contented himself with unsatisfactory replies.

One more incident may be added to the above. Berger testified that a short time after October 14th he was told by Sexsmith that Lane had called upon him and, after inspecting the contract of agency, said, "Well, I will not pay it unless you sue me." If anything further was said it does not appear in the record, and no unfavorable inference may be indulged against plaintiffs as to what may have been said.

The foregoing excerpts present in substance all the oral evidence found in the case which in any way throw light upon the question of a dispute or to an acceptance of the $500 in full satisfaction of plaintiff's claim.

[4] The execution or validity of the contract was not disputed. The amount fixed as commissions or compensation agreed upon was not denied. That plaintiffs were the procuring cause of sale was admitted. No other or different agreement, written or parol, or understanding, express or implied, modifying the contract of agency was set up or asserted or claimed. No complaint was made as to the time, place, or condition of performance. Nothing was said upon which a dispute might be predicated. Clearly, the attitude of defendant appears to be that of a person endeavoring to release himself from the full consequences of a binding contract. This view is strengthened by the offer to "donate" $500. Rather a quick and firm denial of any liability whatsoever would have been the expected retort of a person who felt that an effort was being made to extort money from him. The attempt to induce the Petz brothers, who in nowise were bound to pay any part of the commission, to bear a portion thereof, is another circumstance pointing in the same direction. The remark that he (Lane)

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could not help what Jenal's partners had informed him in respect to the terms of the contract (which was a true statement of fact) was an expression of apparent indifference rather than a positive denial of indebtedness. The further remark that "I will not pay it unless you sue me" belongs to a class of loose expressions made use of under varying circumstances and should be considered in the light of the situation in which they are spoken. Sometimes they are used coercively and are intended to have a deterrent effect, and again they may be spoken to express a determination to stand on one's rights. In any event, the purpose of such an expression under the circumstances of this case could do no more than present an issue of fact to be determined by the court or a jury as any other fact in the case.

We are next brought to a discussion of the defendant's letter inclosing a check for $500, written some two or three weeks after the last conversation above reviewed, as bearing upon the issue of a dispute. The letter reads as follows: "I inclose my check for $500 as your commission for sale of lot 755... to Petz Bros. as agreed upon at time of sale and as part of terms of sale." (Italics ours.) The contract referred to is absolutely silent on the subject of commissions. The subject is not mentioned. That there was no parol agreement made at the time has already been fully shown, so this statement is at best erroneous and has no foundation in fact to support it.

[5] The rule that a mere refusal to pay cannot be made the basis of a consideration for a compromise in the absence of a bona fide dispute is treated in Demars v. MusserSauntry etc. Co., 37 Minn. 418 [35 N. W. 1]. The principle there announced, and which we think applicable to the case at bar, is as follows:

"The defendant is entirely right in his law that the compromise of a disputed or doubtful claim is in itself a good consideration, and that no investigation into the character or value of the claim submitted will be gone into for the purpose of setting aside a compromise honestly made. It is sufficient if the parties entering into it thought at the time that there was a question between them. It is not even necessary that the question in dispute should be really doubtful, if the parties bona fide considered it so. The real consideration which each party receives under a compromise is

not the sacrifice of the right, but the settlement of the dispute. But, on the other hand, it is equally true that, to constitute a good consideration for a settlement by way of compromise, there must have been an actual bona fide difference or dispute between the parties as to their legal rights. There is an entire absence of evidence in this case tending to show any such dispute. There was certainly none as to the amount of plaintiff's claim. Neither was there any as to when it was due according to the terms of the contract. Swenson, who made the alleged settlement with plaintiff, did not claim that the contract was different from what plaintiff asserted it to have been, or that by the law the wages were not payable until the logs arrived at the boom. He simply asserted, according to plaintiff's statement, that he would not pay all the money because it was not 'the law of the company,' or, according to his own statement, because they 'didn't settle that way,' without giving any reason. A person cannot create a dispute sufficient as a consideration for a compromise by a mere refusal to pay an undisputed claim. That would be extortion, and not compromise. There must in fact be a dispute or doubt as to the rights of the parties honestly entertained. The evidence of this is utterly wanting in this case."

Lastly, we come to a consideration of the check and statement sent with it. The rule is that where the amount due is in dispute, as claimed here, and a check for a less amount is sent to the creditor with a statement that it is sent in full satisfaction of the claim, or language equivalent thereto is employed, and the tender is accompanied with such acts or declarations that it amounts to a condition that if the check is accepted at all it is accepted in full satisfaction of the disputed claim, and the creditor so understands it, its acceptance, even though the creditor states at the time that the amount tendered is not accepted in full satisfaction, constitutes an accord and satisfaction. An examination of the check and the accompanying statement will show that the language used does not measure up to the requirements of the leading authorities to be found on the subject. In all the cases that have been called to our attention in which a satisfaction has been held to have been conclusively expressed in writing the writing in some form. shows without question that the acceptance of the inclosure

was clearly intended to be a satisfaction in full of the claim. This sometimes is shown by the express words used in the body of the check or by an accompanying receipt stating that the amount sent is in full of all demands. Of course, the statements, declarations, and acts of the parties. are to be considered and weighed in arriving at the understanding of the parties, but they must be of such a character as to express in a clear manner the intention of the parties to be affected. Neither the language of the receipt nor the check here involved can be said to be conclusive on the case at bar. The plaintiffs with reasonable diligence notified defendant that the payment made was not to be considered in full satisfaction of the claim and that there remained a balance due. Neither Jenal nor any of his partners consented at any time to accept $500 in full satisfaction of the demand.

[6] Whether there was a dispute concerning the amount due and whether the tender was made on condition that acceptance would be in full satisfaction are primarily questions of fact for the trial court. (Lapp-Gifford Co. v. Muscoy Water Co., supra; B. & W. Engineering Co. v. Beam, supra; Nassoiy v. Tomlinson, 148 N. Y. 326 [51 Am. St. Rep. 695, 42 N. E. 715].)

We have reviewed the facts in this case in their relation to a judgment of nonsuit. In so doing we have been compelled to adopt the rules of law which apply to cases of nonsuit and which may be briefly summarized as follows: [7] Every favorable inference fairly deducible and every favorable presumption fairly arising from the evidence adduced must be considered as facts proved in favor of the plaintiffs. Where evidence is fairly susceptible of two constructions, or if one of several inferences may reasonably be made, the court must take the view most favorable to the plaintiffs. If contradictory evidence has been given it must be disregarded. (Estate of Arnold, 147 Cal. 583 [82 Pac. 252].) The plaintiff must also be given the benefit of every piece of evidence which tends to sustain his averments, and such evidence must be weighed in the light most favorable to plaintiffs' claim. (Anderson v. Wickliffe, 178 Cal. 120 [172 Pac. 381].) Evidence, whether erroneously admitted or not, if relevant to the issues joined, must be given the credit and benefit of its full probative

strength, and any question arising from the fact of variation between the evidence of the witnesses cannot be raised or considered. The evidence must be taken most strongly against the defendant, and if the plaintiff has introduced proof sufficient to make out a prima facie case under the allegations of his complaint the motion, if made upon the close of the case, should be denied. (Bush v. Wood, 8 Cal. App. 647 [97 Pac. 709]; In re Estate of Daly, 15 Cal. App. 329 [114 Pac. 787]; Wassermann v. Sloss, 117 Cal. 425 [59 Am. St. Rep. 209, 38 L. R. A. 176, 49 Pac. 566]; Lassen v. Southern Pac. Co., 173 Cal. 71 [159 Pac. 143]; Kleist v. Priem, 51 Cal. App. 32 [196 Pac. 72].)

If an inference can be said to flow from the language used by the defendant to the effect that "the sale has got to net me $28,000," or "I want this to net me $28,000," it is weakened by other testimony in the case. We find that the sale did not, as a matter of fact, net the defendant $28,000, as there were liens outstanding against the property which reduced the amount to some extent. Then, again, we find in the record the uncontradicted testimony of Berger to the effect that Lane was very anxious to sell the property and rid himself of it and told him not to turn down an offer of $650 an acre, and when asked by Berger if he would pay a commission on a sale at $650 he replied, "I will pay a commission on the price that I accept."

We are of the opinion that Petz brothers, whose testimony was offered by the plaintiffs, should have been heard, although offered as witnesses after plaintiffs formally closed their case, inasmuch as they were the only disinterested persons who were present and heard the full conversation about which the controversy arose. Upon a review of the situation we are of the opinion that the motion for a nonsuit was erroneously granted.

The judgment is reversed.

Wilbur, C. J., Waste, J., Kerrigan, J., Lawlor, J., Myers, J., and Lennon J., concurred.