Noyes

Plaintiff sued for breach of a contract of employment. The case was settled by a stipulation for judgment and a judgment. The settlement required defendant to pay plaintiff $35,000, payable $1,000 on *912 or before February 8, 1974; $4,000 on or before March 8, 1974; and $1,500 per month, payable on the fifth day of each month, commencing on April 5, 1974. The stipulation and judgment expressly provided that time was of the essence; stayed execution and waived interest unless defendant defaulted, in which case execution could issue and interest would accrue from February 8, 1974, on the balance unpaid as of the date of default. The stipulation also contained a provision not carried into the judgment reading: “(Plaintiff hereby appoints Valensi and Rose as his attorneys in fact for the purpose of enforcing and/or collecting any checks in payment of the above.)” By a letter subsequent to the stipulation and judgment, plaintiff’s attorneys agreed to extend the payment date for the monthly installments, beginning in April, from the fifth to the fifteenth day of each month.

The February payment was made by a cashier’s check, plaintiff’s counsel having requested payment in…

I would reverse the orders.

In my opinion the stipulation of the parties contemplated that each installment would be paid by check, as business debts are ordinarily paid. The acceleration clause in the agreement meant that there would be no acceleration if a collectible check was delivered on the due date. The acceleration clause in the judgment should have the same meaning as the underlying agreement. The creditor’s unilateral pronouncement on March 23 that he would accept only cash or a certified check was not operative to change the agreement or the judgment.

There is no dispute that the check tendered on April 15 was good. The tender was timely made and kept good by a deposit in a bank in the creditor’s name. The decision of the trial court benefits only a creditor whose purpose is to vex his debtor with an acceleration and further legal proceedings in preference to collecting what is due.

A petition for a rehearing was denied August 4, 1975. Files, J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied October 1, 1975. Mosk, J., was of the opinion that the petition should be granted.

Plaintiff sued for breach of a contract of employment. The case was settled by a stipulation for judgment and a judgment. The settlement required defendant to pay plaintiff $35,000, payable $1,000 on or before February 8, 1974; $4,000 on or before March 8, 1974; and $1,500 per month, payable on the fifth day of each month, commencing on April 5, 1974. The stipulation and judgment expressly provided that time was of the essence; stayed execution and waived interest unless defendant defaulted, in which case execution could issue and interest would accrue from February 8, 1974, on the balance unpaid as of the date of default. The stipulation also contained a provision not carried into the judgment reading: "(Plaintiff hereby appoints Valensi and Rose as his attorneys in fact for the purpose of enforcing and/or collecting any checks in payment of the above.)" By a letter subsequent to the stipulation and judgment, plaintiff's attorneys agreed to extend the payment date for the monthly installments, beginning in April, from the fifth to the fifteenth day of each month.

The February payment was made by a cashier's check, plaintiff's counsel having requested…