Blumer v. Madden

THOMPSON (R. L.), J.

This is an appeal from an order denying defendant’s motion to recall and quash a writ of execution.

December 3, 1925, plaintiff recovered judgment against the defendant for the sum of $465.06, together with interest and costs. In November, 1926, the defendant offered in writing to pay plaintiff the sum of $375 in installments of $50 a month in full satisfaction of the judgment. In reply to this offer the plaintiff wrote the defendant a letter in which he agreed to accept in full payment of the judgment the sum of $483.34, provided that sum should be paid in regular monthly installments of $50, beginning with November 15, 1926. This conditional compromise of the judgment was expressed in the following language:

“If the instalments would he carried on monthly,

we would be willing to accept this proposition which would mean $375 plus $108.34, or $483.34 in complete settlement without any further interest. We would not care to release the judgment until the terms of the agreement have been completed.”

‘To the terms of this proposed compromise the defendant agreed. Several monthly payments were subsequently made

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pursuant to this agreement, aggregating the total sum of $363.48. No payment was made after November 20, 1927. No extension of time was granted.

September 16, 1931, upon proceedings duly had, an execution was directed by the court to be issued under the provisions of section 685 of the Code of Civil Procedure, for the satisfaction of the unpaid portion of the original judgment. The defendant moved to recall and quash this execution on the grounds that the agreement to compromise the judgment constituted a novation, and that the judgment was barred by the provisions of the statute of limitations. This motion was denied. From the order denying the motion to recall and quash the execution, the defendant has appealed.

The agreement to compromise the judgment was conditional upon the regular payments of $50 a month until the sum of $483.34 was fully satisfied. The release of the judgment was specifically reserved. This conditional agreement did not constitute a novation of the obligation, and the judgment was not thereby extinguished. A novation is created only when a new obligation is substituted for the original one with the intention of the parties to thereby extinguish the old debt. Section 1531 of the Civil Code provides in part: