Opinion
Department Two
Appeal from a judgment of the Superior Court of San Joaquin County, and from an order refusing a new trial.
COUNSEL:
Terry, Campbell & Bennett, and J. C. Campbell, for Appellant.
S.D. Woods, and A. L. Levinsky, for Respondent.
JUDGES: Hayne, C. Foote, C., and Belcher, C. C., concurred.
OPINION
HAYNE, Judge
Action for goods sold and delivered. Defendant admitted that the goods were sold and delivered as alleged, but relied upon an agreement [17 P. 544] whereby the assignor of the plaintiff agreed to accept fifty cents on the dollar in satisfaction of the claim. This agreement contained the following clause:
" That each and all of said acts shall be made and done promptly at maturity, and as to this condition, time is hereby made of the essence of this agreement, so that in case of default or miscarriage regarding performance, and payment on the day or days said sums severally become due, the whole of said original indebtedness is hereby renewed and revived ."
The first installment due under this agreement was $ 63.69. The court below found that only $ 43.45 was paid, and we think that the evidence justifies this finding. The expressions in the receipts to the effect that the sum paid was "our pro rata "of the distribution amount to nothing. A receipt is never conclusive; and in view of the contract and the admissions of the defendant, it is apparent that the sum paid was not the amount due under the agreement. Furthermore, there is no evidence that the defendant had paid the "costs, attorneys' fees, and expenses incurred," mentioned in the composition agreement.
It is an elementary principle that an accord without satisfaction is not a bar; and as a matter of course the defendant who relies upon an accord and satisfaction must plead and prove the satisfaction as well as the accord.
The other points seem frivolous. We think the appeal was taken for delay, and therefore advise that the judgment and order be affirmed, with ten per cent damages.
The Court. -- The reasons given in the foregoing opinion, the judgment and order are affirmed, with ten per cent damages.