Argument for Respondent.

said judgment be set aside and vacated, and that he have leave to answer said plaintiffs' complaint," &c.

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

The other facts are stated in the opinion.

Quint & Hardy, for Appellant.

The contract of the 3d of October, 1868, was a settlement of the then existing controversy between the plaintiffs and this defendant; as to him all prior claims were merged in this contract.

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

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

It was clearly accepted in full discharge of the 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 has changed this rule. But even then, where there was an actual acceptance of the agreement, it was a complete satisfaction. (Heathcote v. Crookshanks, 2 Term. R., 27; Drake v. Mitchell, 3 East., 251.) If a less sum be accepted, and the obligee execute a release under seal, it is an extinguishment of the debt. (Fitch v. Sutton, 5 East., 230; Drew v. Thorne Alleyn, 72; Curson v. Monteero, 2 Johns. R., 308; Knight v. Cox, cited in Fitch v. Sutton, 5 East., 231.)

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

That the motion to open the judgment after default, was addressed to the discretion of the Court below, and unless it

appear that such discretion was abused, this Court will not interfere. (Woodward v. Backus, 20 Cal., 137.)

WALLACE, J., delivered the opinion of the Court, CROCKETT, J., TEMPLE, J., and RHODES, C. J., concurring:

Supposing the agreement of October, 1868, to be a discharge of the original debt then in suit, it was still necessary for Burdett to plead it in defense of the pending action. That, however, is not the point on which the case must turn. He had been personally served with the summons and copy of the complaint in the action, in which he was notified that unless he 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 the plaintiffs, in which it is admitted that $2,459.44 is "now due" and is to be "settled" in the particular manner. I do not see that this agreement now produced by Burdett upon the other point goes very far to show that he really was (as he now contends) "never at any time, either individually or in connection with his co-defendant, indebted to said plaintiffs" at all. It is, to say the least, somewhat remarkable that he should undertake to "settle" a sum now due," but in connection with which there was not, as he now says, the slightest liability resting upon him, and this, too, without any request from Woodworth, who is an admitted debtor of the plaintiffs upon this claim. There is nothing in the making of this agreement, which, of itself, should have put Burdett off his guard in the defence of the pending suit. It is not pretended on his part that the plaintiffs promised to discontinue the suit, or to delay its progress. His excuse is that he supposed that the suit would be dismissed. This supposition, he says, was based upon the terms of the agreement of October, but I think it was wholly unwarranted. Besides that, it appears that, on November 30th, he and the plaintiffs had a difference about the meaning of that agreement, and Burdett, under that date, writes to them: "I must therefore, decline making payment." This circumstance, at all events, ought to have awakened his

Points decided.

attention to the suit which he certainly did not know to have been discontinued; and had he moved, even at that late day, he would have been in time, for the judgment by default was not rendered until one month afterward.

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

SPRAGUE, J., expressed no opinion.

No. 2,148.

JOHN J. FULTON, RESPONDENT, v. JAMES W. COX, et al. AFPELLANTS. DISMISSAL OF APPEAL FROM JUDGMENT.-The dismissal of an appeal from a judgment is not a bar to an appeal from a subsequent order refusing a motion for a new trial.

PRACTICE. MISJOINDER

OR

NONJOINDER or PARTIES.- MOTION то AMEND. A denial by the Court, on the objection of the defendant, of a motion to amend the complaint by sustituting a proper party for one improperly sued, will be considered as made at defendant's instance and with his consent, and he cannot subsequently complain of a misjoinder or nonjoinder of parties.

PRACTICE ON APPEAL STATEMENT OF ACCOUNT BY COURT COMMISSIONER. Where the principles upon which an account is to be stated had been determined by the Court before the Commissioner was ordered to make the statement, the action of the Court cannot be reviewed in the absence of the evidence upon which the principles were determined.

APPEAL from the District Court of the Fourth District, City and County of San Francisco.

The complaint was for an accounting and dissolution of copartnership.

On December 28th, 1859, the firm of Cox, Francis & Co. were doing business as commission merchants, and as dealers in miscellaneous trade in San Francisco. Fulton, the plaintiff, was carrying on a tannery and manufacturing leather belting and hose. Plaintiff alleges that Cox, Franis & Co. on that day entered into a verbal agreement with

Statement of Facts.

him, to receive and sell his leather belting and hose at retail, and make advances to him to carry on his business, for which the firm of C. F. & Co. were to receive commissions to amount of twenty per cent. on all sales, and were to be allowed interest at the rate of two per cent. per month on advances; that the arrangement was one of copartnership with him; and that the books and accounts were to be kept and made out in the name of Cox, Francis & Co. The complaint then specially alleges the amount and character of the business transactions, and that about February 1st, 1861, the firm of Cox, Francis & Co. was merged in a new firm, styled Cox, Willcutt & Co., which latter received the stock unsold, and continued the business down to October 15th, 1861, and then refused to make further advances.

It is alleged in the complaint, that the firm of Cox, Francis & Co. was composed of J. W. Cox and J. W. Francis; and Cox, Willcutt & Co. of these two, together with Willcutt.

The defendant, J. W. Francis, answered separately and denied that he ever was, at any time, a member of either of the firms mentioned; and alleged that the firm of Cox, Francis & Co. was composed solely of Cox and D. B. Francis, and that of Cox, Willcutt & Co. was composed solely of defendants Cox and Willcutt.

Defendants Cox and Willcutt answered, and denied specifically each allegation of the complaint; and set up that Cox, Francis & Co. and Cox, Willcutt & Co., in all the dealings connected with the receipt and sale of the leather belting and hose, acted as commission merchants, for an agreed commission of twenty per cent. on all sales; and two per cent. per month interest payable monthly, on all advances made to Fulton to carry on his business, and also set up the misjoinder of J. W. Francis, and nonjoinder of D. B. Francis, as defendant, and aver that the firm of Cox, Francis & Co. was composed solely of Cox and D. B. Francis; and that of Cox, Willcutt & Co. of Cox and Willcutt.

The cause was referred to the Court Commissioner to take the proofs, who stated the accounts, and made report,

Argument for Appellants.

allowing to the plaintiff and defendant interest at the rate of ten per cent. per annum upon the monthly balances as they were found for or against them respectively, at the end of each month, and allowing no commissions to the defendants upon sales made by them or to them after the month of November, 1866; but upon all sales made prior to and inclusive of said month, allowing commissions at the rate of twenty per cent. of the gross amount of sales, with the exception of a few comparatively small items.

The Court adopted the report, and rendered judgment in favor of plaintiff against defendants Cox and Willcutt, plaintiff waiving judgment against defendant J. W. Francis.

Defendants appealed from the judgment, and the appeal was dismissed for want of prosecution. Subsequently defendant's motion for a new trial was denied; and from the order denying said motion, as well as from the judgment, this appeal is taken.

The other facts are stated in the opinion.

W. H. Patterson, for Appellants.

First The answer of a misjoinder, tendered a material issue, and one which the Court was bound to adjudge upon according to the fact as found.

In a bill filed for a partnership accounting, a defendant may plead in bar that he is not a partner. (Collyer on Partnerships, 370; Daniels' Ch'y Pr. 8 700; Prac. Act, 840, subdiv. 4; Id. § 44-45.

Second The nonjoinder of D. B. Francis was also a material issue, upon which the Court was bound to pronounce when the fact was found. And upon the fact as found, entitled the defendants to judgment upon a final submission of the case. (Collyer on Partnerships, § 361, § 368; Prac. Act, § 13, § 40, § 44, § 45.; Wooster v. Chamberlain, 28 Barb. 602.; Sweet v. Tuttle, 4 Kernan, 465; Sloan v. Hooker, 13 Barb. 542.)