majority">MUNSON, J.

The plaintiff claimed to recover upon several items of charge. The defendant presented several items in offset, but claimed that both accounts had been wiped out by a sweeping settlement. The jury found the settlement as claimed by the defendant; but found under an instruction of the court that the plaintiff was entitled to recover one item of his account, notwithstanding the settlement. It is claimed that the charge was erroneous, in view of the testimony of the defendant set forth in the exceptions.

The defendant testified that soon after the settlement was made the plaintiff came to him and said, “ Youought to pay that telephone bill and oil bill,” and that witness replied that he would if the plaintiff would pay for-certain lumber. As far as this was evidence tending to show that when the settlement was made the plaintiff knew that the money handed defendant to pay the oil bills had not been used for that purpose, and so was evidence calculated to leave the item recovered upon within the scope of the settlement, the defendant had the full benefit of it under the charge as given. But the ■defendant claims that it was also evidence tending to show that by a further arrangement this matter was so left that the defendant would be under no obligation to pay the plaintiff the amount of the unsatisfied oil bill, unless the plaintiff paid for the lumber; and that the question whether such an arrangement was made should have been submitted to the iury-

We think the testimony under consideration did not entitle the defendant to have this question submitted. The evidence *562regarding the interview tended to show a proposition for a modification of the settlement just made, and a counter-proposition of terms upon which the proposed modification would be assented to, but no acceptance of this counter-proposition. It is true that no formal expression of assent is necessary, and that if there is evidence of anything from which an assent may properly be inferred, the question is to-be submitted to the jury. But here we have absolutely nothing beyond the making of the counter proposition. There is no evidence that this was followed by a single wbrd or sign. Nor is anything disclosed that could have a tendency to give an affirmative significance to the absence of expression. The narration brings the interview to a close with the counter-proposition unaccepted, and there is nothing to justify an inference in advance of what is stated.

Upon this state of the evidence regarding the interview,, the mere fact that the defendant afterward paid one of the items embraced in the original proposition has no tendency to-establish an agreement. It may be evidence tending to show that the defendant understood his counter-proposition was assented to, but is not evidence tending to show that it was-assented to.

Judgment affirmed.

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