2. (1881.) A verbal agreement to compromise, not founded on any consideration, and under which no right has been surrendered, is unenforceable. Boyce v. Berger, 11 Neb. 399 (9 N. W. 545). Acceptance of offer.

3. (1903.) In the case at bar, the trial court erred in overruling a motion to vacate a judgment rendered on an offer to compromise made in pursuance of the provisions of section 565, code of civil procedure, it being disclosed by the record that there was no acceptance of such offer and no notice of acceptance given within the time and manner required by statute. Becker v. Breen, 68 Neb. 379 (94 N. W. 614).

4. (1993.) A written offer to allow judgment to be taken against a defendant for a sum specified, made under the provisions of section 565 of the code of civil procedure, to be available for the purpose of the rendition of a judgment on such offer of compromise, must be accepted and notice thereof given to the party making the offer within five days from the time of making the same. Becker v. Breen, 68 Neb. 379 (94 N. W. 614.)

inquire into the relative value of the claim and the property given in settlement thereof. Boyce v. Berger, 11 Neb. 399 (9 N. W. 545).

6. (1892.) Acceptance of a check for a less amount than the contract price of a steam boiler, without any condition as to its acceptance save a statement in the nature of a counter-claim, which would balance the account, does not bar an action, by the creditor, to recover the balance of the account. Fremont Foundry & Machine Co. v. Norton, 3 Unof. 804 (92 N. W. 1058).

7. (1902.) When there is a bona fide dispute between parties as to the amount due upon an account, and the debtor tenders a less amount than the claim in full settlement, which the creditor accepts, with knowledge that it was tendered as a full settlement, the dispute will be a sufficient consideration to uphold the settlement, and will bar a recovery upon the remainder of the claim. Chicago, R. I. & P. R. Co. v. Buckstaff, 65 Neb. 334 (91 N. W. 426).

8. (1895.) The settlement of a doubtful or disputed claim is generally a sufficient consideration for a compromise, but to have such effect it is essential that there be in fact a dispute or doubt of the rights of the parties. Fitzgerald v. Fitzgerald & Mallory Construction Co., 44 Neb. 463 (62 N. W. 899).

9. (1895.) An arbitrary refusal to pay, based on the mere pretense of the debtor, made for the purpose of exacting terms which are inequitable and oppressive, is not such a dispute as will of itself support a compromise resulting in a reduction of the amount of indebtedness. Fitzgerald v. Fitzgerald & Mallory Construction Co., 44 Neb. 463 (62 N. W. 899).

10. (1896.) If a consideration is necessary to sustain a settlement made by the payment and receipt in full satisfaction of the sum which the debtor admits to be due, it is found in the fact that the creditor by accepting such sum thereby avoids the delay. expense, and labor of an accounting, and avoids threatened litigation. Treat v. Price, 47 Neb. 875 (66 N. W. 834.)

11. (1897.) The settlemen of a doubtful or disputed claim is generally a sufficient consideration for a compromise, but in order to have such effect it is essential that there be in fact a dispute or doubt of the rights of the parties. An arbitrary refusal to pay,

based on the mere pretense of the debtor, made for the obvious purpose of exacting terms which are inequitable and oppressive, is not such a dispute as will of itself support a compromise resulting in a reduction of the amount of his indebtedness. Home Fire Ins. Co. v. Skoumal, 51 Neb. 655 (71 N. W. 290).

12. (1904.) An accord, even between the plaintiff and a third party, as to the subject matter of an action, and a satisfaction moving from such third party to the plaintiff, are available in bar of the action, if the defendant has authorized or ratified the settlement. Chicago, R. I& P R. Co., v. Brown, 70 Neb. 696 (97 N. W. 1038).

13. (1904.) That it is uncertain which of two parties, both of whom deny liability, is liable for a debt of a fixed and certain amount, is a sufficient consideration to support a settlement betweeen one of such parties and the creditor, whereby the creditor accepts a part of the amount due in discharge of the debt. Chicago, R. I. & P. R. Co. v. Brown, 70 Neb. 696 (97 N. W. 1038).

14. (1906.) If the claimant, knowing that his claim is groundless, forces the other party to a compromise by threats of suit, there is no consideration and the compromise will not be enforced. Gering v. School District, 76 Neb. 219 (107 N. W. 250).

15. (1906.) Forbearance to prosecute proceedings for the reversal of a judgment is a sufficient consideration for a compromise, and, unless the good faith of the claimant in pressing his claim is put in issue, whether he intended to prosecute such proceedings is immaterial. Gering v. School District, 76 Neb. 219 (107 N. W. 250).

16. (1906.) A compromise, whereby one party agrees to pay and the other to receive a certain sum in satisfaction of a doubtful claim, rests upon a sufficient consideration. Gering v. School District, 76 Neb. 219 (107 N. W. 250).

Operation and effect.

17. (1872.) If two parties claim property adversely, and the subject is in litigation, and they come to an agreement in respect of their rights without fraud on the part of either, beyond the representation by one that he owns the property, the other, after a judicial decision in favor of his claims, cannot avoid the compromise. Mills v. Miller, 2 Neb. 299.

18. (1893.) A conveyed certair real es

tate to B by an absolute deed to secure the payment of a loan. The trust character of this deed was recognized by the grantee, who at various times promised that upon a sale of the property he would pay him the surplus in excess of the loan and interest. Afterwards A brought an action against B to redeem, and offered to pay the loan with interest. While the action was pending A and B entered into a stipulation as to the amount which A should pay B, whereupon he would recover the premises. Held, That in the absence of fraud or misrepresentation the agreement was binding upon the parties, and would be enforced. Hamley v. Doe, 36 Neb. 398 (54 N. W. 673).

19. (1894.) A compromise of honest differences whereby a less sum than that claimed has been paid and accepted in full of plaintiff's claim bars the right of plaintiff to recover the balance. Slade v. Swedeburg Elevator Co., 39 Neb. 600 (58 N. W. 191).

20. (1896.) Where a creditor accepts from his debtor a part of an unliquidated demand against him in full settlement and compromise thereof, such an act is a defense and bar to an action by the creditor against the debtor for the original demand, unless it be pleaded and proved that the settlement was procured by fraud, mistake, or duress. Home Fire Ins. Co. v. Bredehoft, 49 Neb. 152 (68 N. W. 400).

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21. (1896.) A being indebted to B in an uncertain amount, sent to the C bank the amount which A conceded to be due, with instructions to pay the sum to B but only in full settlement, and on his signing a receipt to that effect. B, protesting that was due, accepted the money and signed the receipt, but caused the bank to send back, accompanying the receipt, a letter declaring that he only received the money on account and not in settlement. Held, That by receiving the money he had accepted the condition on which it was tendered, and that his protest availed nothing. The terms of the receipt and the refusal of the bank to pay the money except upon his signing it, were notice to him that the bank had no authority to pay it except on the condition that it should be received in full settlement. Treat v. Price, 47 Neb. 875 (66 N. W. 834).

22. (1902.) Where parties enter into an agreement whereby the one agrees to pay, and the other to accept, a certain sum in full satisfaction and discharge of a disputed

claim urged by the latter against the former, such agreement constitutes a valid contract between the parties. Massillon Engine & Thresher Co. v. Prouty, 65 Neb. 496 (91 N. W. 384).

22a. (1908.) When, in an action to set aside a conveyance of land as having been fraudulently procured, the plaintiff obtains a decree in his favor by means of a compromise and settlement, in which he agrees to pay and discharge a mortgage upon the premises executed by his fraudulent grantee, he is not entitled to object, in a subsequent action to foreclose that mortgage, that the same is for a sum in excess of the just indebtedness of the mortgagor 10 the mortgagee, or that prior to the settlement the mortgagee might have obtained a partial satisfaction from a source other than the land. Hannan v. Rihner, 80 Neb. 521 (114 N. W. 605).

23. (1902.) If an agreement for satisfaction and discharge of a disputed claim contemplates the surrender of evidence of indebtedness, on the part of the creditor, on payment of the amount agreed upon, in an action on such contract, the creditor is entitled to recover on a showing of readiness and willingness to perform his part of such contract. Massillon Engine & Thresher Co. v. Prouty, 65 Neb. 496 (91 N. W. 384). Ratification of settlement by pleading.

24. (1904.) A plea interposing the defense of accord and satisfaction made between plaintiff and a third person, is of itself a ratification of the settlement. Chicago, R. I. & P. R. Co. v. Brown, 70 Neb. 696 (97 N. W. 1038).

Setting aside.

25. (1887.) Where, in an action for divorce and alimony, an order is made by the court in which the cause is pending, requiring a sum of money to be paid into court as and for attorney's fees, and afterwards the rarties to the action, by collusion and fraud and for the purpose of defrauding the attorney for plaintiff out of the allowance made for his compensation, with notice of an attorney's lien thereon in his favor, enter into an alleged settlement by which the cause is to be dismissed and the order for alimony satisfied, such fraudulent settlement will be set aside, on motion of the attorney entitled to the money, and the amount found due ordered to be paid into court by the defendant. Aspinwall v. Sabin, 22 Neb. 73 (34 N. W. 72; 3 Am. St. Rep. 258).

26 (1896.) A settlement of a disputed demand will be set aside when procured by fraud, mistake or duress. Home Fire Ins. Co. v. Bredehoft, 49 Neb. 152 (68 N. W. 400).

27. (1902.) One S. had conveyed, by a warranty deed absolute in form, to a bank certain real estate as security for an indebtedness owing by S. to the bank. S. was in financial distress and had no means of meeting his indebtedness save by a sale of the real estate. The bank thereafter assumed to be the absolute owner of the property and denied to S. any right, interest or equity therein, and by injunction proceedings undertoook to dispossess him of a portion of such land. S. procured a purchaser at an advantageous price, and endeavored to adjust his differences with the bank, so as to effectuate a sale of the property, and meet pressing demands against him. The bank refused to consent to a sale or release its interest or reconvey the premises to S., so that a sale might be consummated without the payment by S. of a large sum of money in excess of the amount justly due. Held, Under the facts and circumstances as disclosed by the record, that the payment of the excess over and above the amount justly due, and also a compromise and settlement, the basis thereof, were made under duress and compulsion, and might be recovered back in an action brought for that purpose. First Nat. Bank of David City v. Sargeant, 65 Neb. 594 (91 N. W. 595; 59 L R. A. 296).

28. (1902.) The fact that the party tak ing the money and giving a receipt in full supposed that certain checks, for whose payment the other party refused to indemnify him unless they were produced, were irrecoverably lost, and also supposed his claim for their payment could not be maintained without them, does not constitute a mistake which permits the disregarding of the settlement and a recovery of the amount of the checks after finding them, no fraud being alleged, and the nature and amount of the claim being well known to both par ties. Connor v. Etheridge, 3 Unof. 555 (92 N. W. 135).

29. (1902.) Where a settlement is entered into between two parties in reliance on the accuracy and correctness of boooks of account kept by one of the parties, and it is subsequently discovered that the books have been erroneously kept, and that the party keeping them has not accounted for

all the money which he has received, such a settlement will be set aside and a new accounting had although there may have been no intentional fraud practiced by the bookkeeper, and the failure to account may have been due to mistakes alone. Leidigh v. Keever, 2 Unof. 343 (96 N. W. 106).

30. (1902.) One who, on a settlement with his principal of transactions by him as agent, writes a receipt in full of all demands and attaches it to a draft for the amount the other party has offered to pay for such a receipt, cannot after taking the money, in absence of fraud or mistake, renew a claim previously in dispute between the parties. Connor v. Etheridge, 3 Unof. 555 (92 N. W. 135).

-Parties.

31. (1887.) Original plaintiff not neces sary party to motion by her attorney to set aside settlement of case after an allowance of attorney's fees had been made to her, on ground of fraud. Aspinwall v. Sabin, 22 Neb. 73 (34 N. W. 72; 3 Am. St. Rep. 258).

Evidence of fraud.

32. (1896.) In an action on an insurance policy the defense of which was settlement as a bar, evidence showing the insured receipted for a draft from the insurer, in which it was stated to be in full settlement of all damage, it not appearing that the receipt was not read over to the plaintiff, who could neither read or write English, is insufficient to sustain a finding that such settlement was obtained by fraud. Home Fire Ins. Co. v. Bredehoft, 49 Neb. 152 (68 N. W. 400).

33. (1894.) The evidence relied on in this case to sustain the defense that the compromise or settlement pleaded herein had been procured by unfair means examined, and held, not to establish either fraud, duress, or undue influence. Swartz v. Duncan, 38 Neb. 782 (57 N. W. 543).

34. (1899.) The circumstances of a set

tlement held to include matters of mistake or fraud sufficient to avoid its effect against complaining party. North Nebraska Driving Park Ass'n v. Box, 57 Neb. 302 (77 N. W. 770).

Burden of proof.

35. (1896.) The burden of showing that a settlement was procured by fraud is on the party alleging it. Home Fire Ins. Co. v. Bredehoft, 49 Neb. 152 (68 N. W. 400).

Pleading.

36. (1893.) An answer, in an action for conversion of property, alleging, "that the defendant had a full and complete settlement of all matters and things in disputeand more especially the things referred to in the petition," presents the issue of settlement as a distinct defense and defendant is not confined to proof of the arbitration alone. Forbes v. Petty, 37 Neb. 899 (56 N. W. 730).

37. (1899.) A pleading stating that if a settlement was made its effect was avoided by mistake of fraud is an admission of the settlement. North Nebraska Fair & Driving Park Ass'n v. Box, 57 Neb. 302 (77 N. W. 770).

38. (1907.) The giving of a note by one party to another in settlement of the differences betweeen them is a good defense in an action by the maker against the payee to recover prior existing claims, in the absence of fraud or mistake, but such defense must be pleaded. Gandy v. Wiltse, 79 Neb. 280 (112 N. W. 569).

Evidence.

Admissibility.

See, also, Bastards, §§ 65-68. 39.

(1891.) Offer of compromise made by defendant and not accepted is inadmissible in evidence in a bastardy proceeding. Olson v. Peterson, 33 Neb. 358 (50 N. W. 155).

40. (1876.) The rule excluding evidence of offers to compromise does not apply to offers to compromise a dispute which forms the basis or constitute a part of a contract actually compromising such dispute. Stuht v. Sweesy, 48 Neb. 767 (67 N. W. 748).

41. (1896.) Unaccepted propositions of compromise are inadmissible in evidence. Callen v. Rose, 47 Neb. 638 (66 N. W. 639); Eldridge v. Hargreaves, 30 Neb. 638 (46 N. W. 923).

42. (1897.) An offer of compromise made by one party to an action and not accepted by the other is not generally admissible in evidence. Hanover Fire Ins. Co. v. Stoddard, 52 Neb. 745 (73 N. W. 291).

43. (1897.) An offer to compromise a matter in dispute cannot be given in evidence against the party by whom such offer was made. Wright v. Morse, 53 Neb. 3 (73 N. W. 211).

44. (1898.) In an action for damages

for inducing the purchase of property by false representations an offer of plaintiff to compromise before suit was brought is incompetent evidence. Boice v. Palmer, 55 Neb. 389 (75 N. W. 849).

45. (1903.) An amicable adjustment of a controversy between two parties is not admissible for the purpose of showing any liability of either. Creighton v. Chicago, R. I. & P. R. Co., 68 Neh. 456 (94 N. W. 527).

46. (1906.) In an action upon the promise of a school district to pay a certain amount in composition of a doubtful claim, one of the defenses was that the claimant secured the adoption of a resolution for the compromise by threats and intimidation, and there is evidence tending to support such defense. Held, That evidence as to his reputation in the vicinity, as to being peaceable or otherwise, was properly received. Gering v. School District, 76 Neb. 219 (107 N. W. 250).

47. (1906.) Declarations of parties made at a meeting where resolutions of a compromise of a claim against an officer of a school district were adopted, tending to show that they were intimidated and for that reason left the meeting and refrained from voting on the resolution, are properly receivable in evidence as a part of the res gestæ. Gering v. School District, 76 Neb. 219 (107 N. W. 250).

- Burden of proof.

48. (1885.) Where there has been a settlement of accounts and a promissory note has been given for the amount found due, the burden of proving the settlement did not include debts owing to the maker of the note is upon him. Keller v. Keller, 18 Neb. 366 (25 N. W. 364).

49. (1903.) The burden of proof is upon the party admitting a settlement to establish the facts relied on in avoidance thereof. Linton v. Cathers, 70 Neb. 598 (97 N. W. 799).

Instructions.

50. (1888.) An action on an alleged compromise agreement, an instruction, "No particular form of words is necessary to constitute a settlement in law, nor is it necessary for the plaintiff to prove a promise to pay the balance found to be due, provided a balance be found in his favor, as hereafter explained," is not open to the objection that it assumes that there was a settlement between the parties. Brewer v. Wright, 25 Neb. 305 (41 N. W. 159).

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51. (1893.) An instruction, "Where a settlement is made, and a promissory note is given as a result of the settlement, the giving of the note is prima facie evidence that all matters in difference between the parties at the time of the settlement were settled in the settlement; and this presumption must prevail until a preponderance of the evidence shows that there were matters in the difference at the time between the parties that were not included in such setticment," held applicable to the testimony and not erroneous. Wagner v. Ladd, 38 Neb. 161 (56 N. W. 891).

CONCEALMENT.

Element of fraud, see Fraud, §§ 25, 26. As affecting subscription, see Subscription, § 4.

CONDEMNATION.

See Eminent Domain.

CONDITIONAL SALES.

See Sales, §§ 551-583.

CONDITIONS.

In assignment for creditors, see Assign ments for Benefit of Creditors §§ 38-41. In deeed, see Deeds, §§ 185-188. In will, see Wills, §§ 199-211. In conveyances, see Fraudulent Convey ances, I, G.

CONDONATION.

Of acts of spouse as defense to divorce, see Divorce, §§ 30-37. Sufficiency of proof of, see Divorce. §§ 98, 99. CONFESSION.

Admissibility in evidence, see Criminal Law, X, K.

Of judgment, II.

Plea of confession and avoidance, in aetion on covenant, see Covenant, § 62. Pleading avoidance in general, see Pleading. $$ 100-104.

CONFIRMATION.

Of sales by administrator, see Executors and Administrators. § 241.

Of judicial sale, see Judicial Sales, §§ 369430.

Of receiver's sale, see Receivers, §§ 94, 95. Of tax sale, see Taxation, §§ 653-657.

CONFLICT OF LAWS.

Laws governing as to validity of negoti ble note, see Bills and Notes, $$ 57, 58.