Maurer

This is an appeal by plaintiff J. M. Maurer from a judgment entered in favor of the defendant M. Bernardo in an action upon a promissory note. The facts are not in dispute and are briefly these:

It was expressly stated by Ware & Ware that this proposal to pay $50 per month until the note was fully paid was by way of settlement and was made “without admitting any liability on behalf of Mr. Bernardo”.

Pursuant to this arrangement and understanding, defendant, through his attorneys, paid plaintiff and appellant $50 on February 11, 1927, on account of said note. No further payments of any kind were made and nothing further occurred until over six months later. On August 29, 1927, Mr. Bygel wrote Ware & Ware again regarding said indebtedness, in part, as follows: “Unless I receive a substantial remittance by return mail, I am instructed to proceed.”

This letter was referred directly to defendant, who on August 31, 1927, wrote to Mr. Bygel, the attorney for plaintiff, the following letter:

After defendant wrote this letter nothing was said or done by either party, or their attorneys, until March 21, 1928, when the original complaint herein was filed and summons issued.

The note, as…