The opinion of the court was delivered by

The tender which was made in the first suit between these parties was upon the balance of their book accounts as stated in the account rendered by the defendant to the plaintiff in the spring of 1856. That balance and not the particular items of their accounts constituted the claim on which the tender was made. It is stated in the case that no subsequent dealings were had between *253these parties. This suit, therefore, is brought upon matters which existed during the pendency of the first suit, and which were included in the account rendered or were the subject of disagreement at the time of their attempted compromise. It is not pretended that any item of account for which this suit is brought was then overlooked or omitted through forgetfulness or mistake. When, therefore, this plaintiff tendered to the defendant in that action the sum of eleven dollars and twenty-nine cents it was an acknowledgment on his part that that sum was due from him as a balance on book. It was a recognition of the balance as stated to him in the account rendered by the defendant, and in effect was a waiver of any further claim on items of account about which they had disagreed. The plaintiff is bound to regard that as the true balance of their book accounts. The money tendered was accepted as payment of that balance by the defendant and his suit thereupon discontinued. Both parties are now concluded by it, as much so as by an accord and satisfaction. This plaintiff who made that tender can sustain no action upon matters of account which then existed between them, whether those matters were agreed to or were the subject of dispute. They must be regarded as merged or included in the balance, which the parties have acknowledged to be the true one, by the tender made by the plaintiff and the acceptance of the money and the discontinuance of the suit by the defendant. If this suit can be sustained, its effect will virtually be to allow the plaintiff to recover back money tendered by him and received by the defendant on a claim acknowledged to be just and due. We think this action cannot be sustained.

The judgment of the county court is reversed and judgment rendered for the defendant.