Deland v. Hiett

27 Cal. 611 | Cal. | 1865

By the Court, Shafter, J.

The question in this case, is, whether a payment of a part of the amount due upon a money judgment will discharge the judgment, the payment having been made under a dry agreement that it should operate as a satisfaction in full. It was held in Cumber v. Wane, 1 Strange, 426, the leading case upon the subject, that a liquidated indebtedness, presently due, could not be discharged by a payment of less than the whole sum; and in the, case of Fitch v. Sutton, 5 East. 230, the doctrine is not only reasserted, but the reason of it is given—such a contract is nudum pactum. The question has been adjudged, probably in every State in the Union, and the rule has been uniformly affirmed, and on the ground stated. There is a diversity of cases that are sometimes spoken of as exceptions to the rule, but they are, more properly, not within its scope. A composition, going solely upon the grounds stated, is universally bad. Inasmuch as the discharge in this case was of record, it is possible that it might operate as an estoppel, were it not for the fact that the complaint itself goes behind the record and exposes the fact that the discharge was entered in pursuance of a nudum pactum. The cases bearing upon the main question are collected in 1 Smith’s Leading Cases, page 147, where the present state of the law upon the point is fully and learnedly exhibited in the note on Cumber v. Wane.

The judgment is affirmed.