Defendant now contends that the transaction between the parties in December, when the two checks were given and retained by plaintiffs, was an accord and satisfaction of any and all disputed claims or demands between the two, and that the defendant was therefore entitled to judgment.

Plaintiffs assert that defendant ought liot to be heard on such a defense because no accord and satisfaction was pleaded, and cites Brzezinski v. Lakeside P. Co. 187 Wis. 653, 660, 205 N. W. 418, to the effect that an accord and satisfaction must be pleaded and the issue thereon be tried.

Undoubtedly it would have been far better practice for such independent defense to have been specially set up by original pleading or by amendment during the trial; evidence, *598however, was received indicating that, so far as defendant, at least, was concerned, the transaction in December was considered as being in the nature of a settlement of disputes between the parties, and such evidence was received without objection in that respect by plaintiffs’ counsel. It is evident from the record and the court’s decision that the subject of accord and satisfaction was submitted to the circuit court on appeal and there expressly considered and dis-. posed of adversely to defendant.

We do not feel justified, therefore, in refusing to consider such a defense under the present record, and on the merits of that question we are satisfied that the judgment should be for defendant.

While it is true that defendant’s buyer checked the item as he found it on the inventory submitted by plaintiffs of the “96 boxes of Jet shoe polish,” still it is undisputed that nothing was said by either party as to the color, and it is undisputed that there was no present market for the brown and that the defendant was then overstocked with such brown polish. It is further undisputed that within ten days after the goods had been received plaintiffs were notified that the seventy-two dozen of brown shoe polish were not acceptable to defendant and such attitude was thereafter maintained constantly. It is undisputed that plaintiffs themselves recognized, to some extent at least, the question whether there had been an outright sale of this entire item by their attempting to arrange with the manufacturer’s representative for an exchange of the seventy-two boxes of brown for the same number of black which the defendant would have been willing to take. The acts of the parties when the arrangement was made in December; payment made and accepted for the twenty-four boxes of black polish and the remaining seventy-two dozen of brown excluded from the computation as to the amount due plaintiffs on this entire bill; the fact that the amount of the check then given was not *599accepted by plaintiffs until- and after a conference between the two plaintiffs and an objection raised to the $3.60 item, which had nothing to do with the shoe polish, and after that item was adjusted and paid then the other check was accepted and retained, — all show an accord and satisfaction. Who wrote on the face of the invoice that the seventy-two brown were “held for disposition” does not appear in the record. But it does appear that the plaintiffs accepted the check in payment of the exact changed total on the face of their own and corrected invoice. It is of considerable significance that if it was not then in effect understood and agreed that the defendant should be discharged from further liability on the theory of a completed sale and passing of title to the defendant of the entire ninety-six dozen as of the time the articles were delivered to defendant, that the plaintiffs should-have accepted and retained a check for an amount which included the twenty-four boxes of black polish, and still allow the seventy-two dozen of brown to remain unpaid for, although they refused to accept such check of $166.87 when first given because of the dispute over the little item of $3.60. Such action of the parties seems to us to speak loudly to the effect that it was then agreed upon by the parties that the seventy-two boxes of brown should be treated as separate and distinct from the twenty-four boxes of the black polish in accord with the consistent claim of the defendant to that effect, either on the theory that there was not a completed sale in October and no then passing of title under sec. 121.18, Stats-., or else a delivery “on sale or return” under sec. 121.19 (3) (a), and in any event that such disputes were then settled and compromised.

There is no escape from the conclusion that had the original invoice disclosed the true condition of affairs, that there were but twenty-four dozen of the salable black shoe polish, this controversy would never have arisen. There is no foundation here for asserting any want of good faith or fraud *600by defendant, and we think, therefore, that judgment should have gone for the defendant, and that the situation disclosed is not within that of Robinson v. Marachowsky, 184 Wis. 600, 200 N. W. 398, cited by the court below.

The judgment below was also incorrect in computing the amount found due for the seventy-two dozen of brown polish at the list price of $1.35 and making no allowance for the fifteen per cent, discount that was stated on the face of the bill itself as originally made out by Irving Robinson, or for a certain quantity of free boxes as was agreed upon by the parties in computing the amount due for the twenty-four dozen.

By the Court. — Judgment reversed, and the cause remanded with directions to dismiss the complaint.