¶1The goods sold and delivered consisted of dresses, hats, underwear and so forth, for which the plaintiff has recovered a judgment based on a balance due her of $3,661. The plaintiff claimed that she had rendered a bill for about $5,661, and that the defendant had paid $2,000 on account of it, and that the balance of $3,661, as above stated, was due. The defendant claimed that the $2,000 *35was paid and accepted in settlement of the claim, and was an accord and satisfaction thereof. There was a dispute between the parties upon this question, and it was for the jury to say which party they believed. The learned trial justice, however, doubtless inadvertently, instructed the jury upon this question in such a manner as to require a new trial.
¶2There was evidence on the part of the defendant that the price of the goods was excessive. After properly charging the jury that an accord and satisfaction could only exist where a dispute had arisen between the parties, the court, continuing, said: “ In this case, it is contended on the part of the defendant that when she paid this $2,000 in the month of April, there was nothing said …
¶3At the conclusion of the charge, Mr. Wetmore, the attorney for the defendant, appellant, said: “ I want to respectfully call your Honor’s attention to one part of the charge in which your memory and mine as to the testimony of this defendant is different. … Your Honor stated that the defendant had testified that in April, 1921, she paid $2,000. The Court: Yes. Mr. Wetmore: And that at that time there was nothing said about settling in full or words to that effect. The Court: Yes. Mr. Wetmore: Now I remember distinctly, or think I do, that the defendant testified that she went in there on April 12th, 1921, and told Nicole that she was not going to pay that amount of the bill that she had been overcharged, and Nicole said, ‘ I am going to Europe to purchase goods and what will you pay me? ’ and she says, ‘ I will give you $2,000 to settle it.’ The Court: There was no such testimony. Mr. Wetmore: That is my impression. The Court: No; the jury have paid attention to the testimony. Mr. Wetmore: Then I except to that part of your Honor’s charge.”
¶4From the record it appears that the defendant had testified as follows: “ I told Madame Nicole I would not pay that bill because I had been overcharged and she said that we would not fall out about anything like that, she did not want to fall out and not have me for a customer any more, and I told her I would not pay the bill because I knew she charged me too much, and [she] said, well, she was going to Europe in a little while, and she asked me what I would pay her, and I told her $2,000 and she said all right she would take that $2,000 and then she gave me the receipt; I didn’t pay any attention to the receipt and I didn’t hear any more about it.”
¶5From this testimony, together with the other evidence in the case, it would be within the province of the triers of the fact to draw an inference that the said sum was paid in full accord and *36satisfaction. Plaintiff, moreover, had theretofore testified also that there was a conversation between herself and the defendant, but gave a different version of it from that given by the defendant. When the learned trial justice, however, charged that in order to have an accord and satisfaction, there must be a dispute and that the defendant had said nothing, the effect was to charge the defendant out of court.
¶6It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
¶7Dowling and Page, JJ., concur; Smith and Mgrrell, JJ., dissent.