Brown

This is an appeal from an order setting aside an order directing that execution issue. Plaintiff, on September 20, 1911, obtained a judgment against Jacobi, Rothchild, Conant, and Muller, joint guarantors on a promissory note. The judgment called for $9,231.57 and $1,000 attorneys’ fees and costs of suit. On December 29, 1911, the defendants Rothchild and Conant paid on said judgment $8,500, taking a satisfaction "of judgment to that extent and a release which contained the express reservation that it should “not operate to release said I. L. Jacobi and said Otto Muller from the payment of the balance of said judgment. ’ ’

On October 7, 1920, the balance of the judgment being still unpaid, plaintiff obtained an order directing that execution issue and the judgment be enforced. Thereafter, on motion of defendant Muller, this order was set aside on the ground that the partial satisfaction of December, 1911, released Muller also under the provisions of section 1543 of the Civil Code, because he was a mere guarantor. From the order granting Muller’s motion plaintiff brings this appeal.

The order is attacked upon two grounds: (1) That the reservation in the release protected…