Cantrall

Alonzo Leachman commenced this action against respondents Waterman and Ruff and against the executrix of the will of C. A. Mohrenstecher, deceased, and George M. Cage, for renewal of a judgment entered on the twentieth day of July, 1914, against G. A. Mohrenstecher, Waterman, Ruff, and Cage; and, as appears by the evidence, also against one E. S. Finney. Leachman appealed from the judgment entered in favor of respondents. Since his death, pending the appeal, the administratrix of his estate has been substituted as plaintiff and appellant.

In the present action, judgment by default was entered against the executrix of the will of Mohrenstecher. That judgment is now final. (Leachman v. Cage, 50 Cal. App. 241 [ 194 Pac. 750 ].) The record shows that in this action defendant Cage has not been served with summons and has not appeared. It follows that Waterman and Ruff alone are respondents to this appeal.

The original judgment amounted to $1,061. The plaintiff alleged that no part of said judgment has been paid, except the sum of $500 paid on or about August 11, 1919. Respondents contend that there was also paid on account of the judgment of July 20, 1914, by the estate of…

I concur in the judgment for the reason that it appears unquestionably to be in accord with the prior decisions of our supreme court. The rule approved by these decisions—that is, that part payment on a money judgment under an express agreement on the part of the judgment creditor to accept the payment in full settlement and satisfaction of the judgment is void, and not binding upon the judgment creditor—is in my opinion without reason, is against the universal custom and practice of business, and is against good morals. “It has been freely criticised by most of the courts which have had occasion to consider it.” (1 Cyc., p. 321.) The supreme court of Mississippi refused to follow this rule, and in an exhaustive opinion written by Chief Justice Woods he attempted to show its unsoundness and that it had its origin in a misconception of an early English decision. In the course of his opinion, Chief Justice Woods says: “The absurdity and unreasonableness of the rule seem to be generally conceded, but there also seems to remain a wavering, shadowy belief in the fact, falsely so called, that the agreement to accept and the actual acceptance of a lesser sum in full satisfaction of a…