No. 2,237.

#### SOLOMON SWEET, and SIMON SWEET, Respondents, *v.*HENRY BURDETT, impleaded with JOSEPH WOODWORTH, Appellants.

PleadÍsg. — Ageeement as Disohaege op Debt in Suit. — An agreement between tbe parties which is to operate as a discharge of a debt in suit, must be pleaded in defense of the pending action.

Peactice. — Default.—S. & S. brought suit to recover a sum of money which they claimed to be due them from B. *&*W. B, upon being served with summons and copy of complaint, entered into an agreement with S. & S., in which he admitted that a certain sum was then due, and stipulating that it was to be settled in a particular manner. Held, that the agreement affords no ground for setting aside a default entered against B. in the absence of any promise by S. & S. to discontinue the suit, or to delay its progress.

Appeal from tbe District Court of tbe Twelfth District, City and County of San Francisco.

Suit was brought by S. Sweet *&*Brother to recover a balance which they claimed to be due them from defendants, and for tbe payment of which they bold defendants’ written promise, together with interest and costs of suit. Defendants were regularly served with process, and having failed to appear and answer, and their default having been entered, *98judgment was entered in pursuance of tbe prayer of tbe complaint.

Afterward, H. Burdett, one of tbe defendants, made affidavit in wbicb be denied that be was ever, at any time, either individually or in connection witb bis co-defendant, indebted to plaintiffs, and alleged that after tbe commencement of tbe suit, and after being served witb process, “that in order to be relieved of tbe trouble and vexation of tbe law, and to be rid of said suit, and under tbe representations of tbe plaintiffs, and tbeir assurances that tbis defendant could and should have immediate possession of a certain mining claim, ” be entered into tbe following contract:

“Tbis agreement, made tbis third day of October, A. d. 1868, by and between Sweet & Brother and Henry Burdett, witnessetb: That tbe above entitled suit and tbe claim therein represented, upon which there is now due tbe sum of $2,459,44, U. S. gold coin, shall be settled as follows: all tbe net receipts from tbe mines and claims known as the Long Tom Mining Claims, in Kern county, to tbe amount of said claim, shall be paid by said Burdett to Sweet & Brother, for the period of seventy-five days from this»date; one half to be paid in forty-five days from date, and the balance in seventy-five days from date. Said Burdett guarantees that the receipts shall equal one half of the amount of tbe claim; if they do not,, be will pay one half of said claim in two installments at tbe times above stated, which shall be accepted by said Sweet *&*Brother in full satisfaction of said claim.

“It is understood that said Sweet *&*Brother may procure from said Woodworth a note for one half of said claim; and if said receipts paid over exceed one half of said claim, then said Burdett shall be interested in said note to tbe extent of such excess, provided tbe full amount of tbe claim of Sweet & Brother shall be first paid in full.

“ In witness whereof tbe said parties have hereunto set tbeir hands and seals tbis third day of December, A. D. 1868.

“S. Sweet & Beothee, [Seal.] “H. Buedett. [Seal.]”

Affiant further says that *h.6*has a perfect and complete defence to said action; “wherefore he prays the Court that *99said judgment be set aside and vacated, and that be have leave to answer said plaintiffs’ complaint,” &c.

A motion to set aside and vacate tbe judgment was denied, and from tbe order denying said motion defendant bas appealed.

Tbe other facts are stated in tbe opinion.

*Quint & Hardy,*for Appellant.

Tbe contract of tbe 3d of October, 1868, was a settlement of tbe then existing controversy between tbe plaintiffs and tbis defendant; as to bim all prior claims were merged in tbis contract.

Where an engagement bas been made by way of simple contract, and afterward tbe same engagement is entered into between tbe same parties by deed, (tbis contract is under seal,) tbe simple contract is merged in tbe deed, and becomes wholly extinguished. (2 vol. Burrel Law Die., p. 714; Smith on Contracts. 18; 2 Penn. B., 533; 1 Watts *&*Serg. B., 83.)

Tbis contract is a specialty, substituted for tbe original claim, and must be enforced instead of tbe original.

It was clearly accepted in full discharge of tbe original debt or liability. There is a perfect accord and satisfaction. Formerly an agreement to pay a less sum would not operate as a satisfaction. Our statute bas changed tbis rule. But even then, where there was an actual acceptance of tbe agreement, it was a complete satisfaction. *(Heath-cote*v. *CrooJcshanks,*2 Term. B., 27; *Drake*v. *Mitchell,*3 East., 251.) If a less sum be accepted, and tbe obligee execute a release under seal, it is an extinguishment of tbe debt. *(Fitch*v. *Sutton,*5 East., 230; *Drew*v. *Thorne Alleyn,*72; *Gurson*v. *Monteero,*2 Johns. B., 308; *Knight*v. *Cox,*cited in *Fitch*v. *Sutton,*5 East., 231.)

*E. B. Mastick*and *Bishop & Gerald,*for Bespondents, contended:

That tbe motion to open tbe judgment after default, was addressed to tbe discretion of tbe Court below, and unless it *100appear tbat sueb discretion was abused, tbis Court will not interfere. *(Woodwards. Backus,*20 Cal., 137.)

Wallace, J.,

delivered tbe opinion of tbe Court, Ceock-ett, J., Temple, J., and Bhodes, O. J., concurring:

Supposing tbe agreement of October, 1868, to be a discharge of tbe original debt tben in suit, it was still necessary for Burdett to plead it in defense of tbe pending-action. Tbat, however, is not tbe point on which tbe case must turn. He bad been personally served with tbe summons and copy of tbe complaint- in tbe action, in which be was notified tbat unless be made answer in a given time a judgment by default would be taken against him. He did not make answer at any time. He made an agreement, it is true, with tbe plaintiffs, in which it is admitted tbat $2,459 44 is “ now due” and is to be *“*settled” in tbe particular manner. I do not see that tbis agreement now produced by Burdett upon tbe other point goes very far to show tbat be really was (as be now contends) “never at any time, either individually or in connection with bis co-defendant, indebted to said plaintiffs” at all. It is, to say tbe least, somewhat remarkable tbat be should undertake to “settle” a sum “now due,” but in connection with which there was not, as be now says, tbe slightest liability resting upon him, and tbis, too, without any request from Woodworth, who is an admitted debtor of tbe plaintiffs upon tbis claim. There is nothing in tbe making of tbis agreement, which, of itself, should have put Burdett off bis guard in tbe defence of tbe pending suit. It is not pretended on bis part tbat tbe plaintiffs promised to discontinue tbe suit, or to delay its progress. His excuse is tbat be supposed tbat tbe suit would be dismissed. Tbis supposition, be says, was based upon tbe terms of tbe agreement of October, but I think it was wholly unwarranted. Besides tbat, it appears tbat, on November 30th, be and tbe plaintiffs bad a difference about tbe meaning of tbat agreement, 'and Burdett, under tbat date, writes to them: “ I must therefore, decline making payment.” Tbis cir*101cumstance, at all events, ought to have awakened his attention to tbe suit wbicb be certainly did not know to have been discontinued; and bad be moved, even at that late day, be would bave been in time, for tbe judgment by default was not rendered until one month afterward.

I am unable to see, under tbe circumstances, that tbe Court below abused its discretion in refusing to- open tbe default, and its order is, therefore, affirmed.

Sprague, J., expressed no opinion.