Page:North Dakota Reports (vol. 1).pdf/307

 by-law No. 9 was a monthly compensation. It was subject to change at the end of any month. The receipt of a less sum than the by-law allowed, for any one month, cannot be construed as an election to receive the same amount for any subsequent month. All the cases that we find, where the acceptance of any specified sum at the end of a month or a quarter has been held to be an acceptance of the same rate for a year, are cases where an annual salary was an entirety, and could not be changed dur-during [sic] the year, but was made payable monthly or quarterly, as the case might be.

The court below allowed plaintiff to recover at the rate of $50 per month for the entire year, including the two months for which he had rendered his bills and received his pay at the rate of $25 per month, but crediting the defendant with the amounts so paid. We think plaintiff should recover nothing for those two months, and the judgment should be modified accordingly. It is true that a party cannot before election to office bind himself by an agreement to receive less salary, if elected, for the performance of the duties of such office than the law fixes. Purdy v. City of Independence, 39 N. W. 641. But after the performance of the services, the party may receive less compensation therefor than the legal salary if he choose so todo. And where he renders a bill purporting to cover such services, and the whole thereof, and such bill is allowed and paid as rendered, and payment accepted without objection or protest, it amounts to an adjudication, and, in the absence of surprise, accident or mistake of fact, cannot be reopened. Parties cannot so divide their claims and present them by installments. Harding v. County of Montgomery, 55 Iowa, 41, 7 N. W. Rep. 396; Love v. Mayor, etc., 40 N. J. Law, 456; Thomas v. St. Clair Co., 45 Mich. 479, 8 N. W. Rep. 45. The cases of Clarke v. Milwaukee Co., 53 Wis. 65, 9 N. W. Rep. 782 and O’Herrin v. Milwaukee Co., 30 N. W. Rep. 239, announce no different rule. In those cases certain sums were paid and receipted for, but no bills were rendered or any acts done from which the court could gather the assent of the plaintiffs to receive their reduced salary. The judgment in this case should have been for the sum of $495, with interest from May 20, 1889, and the district court is di-