Kauffman, Davinson & Co. v. W. F. Shaw & Co.

COOPER, P. J.

This action was brought to recover the sum of $1,006.85 upon a promissory note dated June 13, 1906, ' less the sum of $503.42, which it is alleged was paid thereon

[573]

on the eighteenth day of September, 1906. The ease was tried before the court, and findings filed, upon which judgment was entered for the defendant.

The defendant in its answer claimed that it had been released from the payment of the full amount of said promissory note by virtue of an agreement of compromise, under the terms of which it was to pay the plaintiff the sum of $503.42 in full payment of said promissory note, and that said compromise agreement had been fully performed on its part. The court found in relation to the said compromise agreement as follows:

"That on the - day of-August, 1906, at the City and County of San Francisco, State of California, by its certain writing, the plaintiff agreed with the defendant to accept the sum of $503.42, with interest thereon from June 13, 1906, at the rate of six per cent per annum, in full payment of principal and interest mentioned in said promissory note above set out and mentioned in the complaint herein, provided and on the express condition precedent that such payment be made within ninety, days from and after the date of the execution of said agreement, and by said agreement it was further provided that said agreement was strictly upon the condition precedent that all and singular the terms, provisions and conditions thereof be fully performed, and in the event of the failure in the performance of any of said provisions, terms and conditions, then the plaintiff should be and thereby was released from any obligation thereunder and from any obligation to accept less than the full amount of its claim in settlement thereof, and that time was in all respects of the essence of said agreement, and that if at the expiration of said period of 90 days the said sum of five hundred and three and 42/100 ($503.42) dollars, with said interest thereon, should not have been paid, then said agreement should be and become null and void, and the plaintiff should be released from all obligation to accept said sum in settlement of its claim, and that such payment of said last named sum and interest should be deemed merely a payment on account by the said defendant to the said plaintiff, and further that in the event of the violation of said agreement in any respect by the said defendant, or in the event of the failure in the performance by defendant of any of the terms or conditions in said agreement set forth, plaintiff should at its option be released from said