I concur in the judgment for the reason that it appears unquestionably to be in accord with the prior decisions of our supreme court. The rule approved by these decisions — that is, that part payment on a money judgment under an express agreement on the part of the judgment creditor to accept the payment in full settlement and satisfaction of the judgment is void, and not binding upon the judgment creditor — is in my opinion without reason, is against the universal custom and practice of business, and is against good morals. "It has been freely criticised by most of the courts which have had occasion to consider it." (1 Cyc., p. 321.) The supreme court of Mississippi refused to follow this rule, and in an exhaustive opinion written by Chief Justice Woods he attempted to show its unsoundness and that it had its origin in a misconception of an early English decision. In the course of his opinion, Chief Justice Woods says: "The absurdity and unreasonableness of the rule seem to be generally conceded, but there also seems to remain a wavering, shadowy belief in the fact, falsely so called, that the agreement to accept and the actual acceptance of a lesser sum in full satisfaction of a larger sum is without any consideration to support it; that is, that the new agreement confers no benefit upon the creditor. However it may have seemed three hundred years ago in England, when trade and commerce had not yet burst their swaddling bands, at this day, and in this country, where almost every man is in some way or other engaged in trade or commerce, it is as ridiculous as it is untrue to say that the payment of a lesser part of an originally greater debt, cash in hand, without vexation, cost, and delay, or the hazards of litigation in an effort to collect all, is not often — nay, generally — greatly to the benefit of the creditor." (Clayton v. Clark, 74 Miss. 499 [60 Am. St. Rep. 321, 37 L.R.A. 771, 21 So. 565, 22 So. 189] .)
Houser, J., concurred. *Page 189