Bennett

Plaintiff commenced an action against the defendants on a promissory note, claiming a balance due thereon of $606 together with interest at twelve per cent per annum from March 16, 1926, attorneys’ fees and costs. On June 18, 1928, a default judgment against the defendants was entered in the sum of $839, together with costs. This judgment became final without any appeal therefrom. Thereafter, upon grounds not shown in the record here, defendant Bennett moved to vacate the judgment against him, which motion was denied on October 16, 1928.

On October 19, 1928, defendant Bennett in conference with the president of the plaintiff corporation, offered to pay the sum of $606 in settlement of the judgment; that he would pay $500 within ten days and the balance of $106 at a later date. This offer was accepted it being understood that in consideration of such payment plaintiff would satisfy the judgment and the defendant would not proceed further ‘with a motion to rehear the motion to set aside the default, or take an appeal therefrom. At this time Bennett paid $25 on account, by check on the face of which was written, “In settlement of judgment, Balance due $581.00.” Thereupon he sought…