(concurring):
Yielding to the weight of authority, I concur in this decision; but, to my mind, it involves a contradiction. An implied contract to. pay money as interest or upon any other valid consideration is just as binding as an express contract. There is or is not an implied contract to pay interest for the use of money retained after it has become due and payable. Our decisions say there is, and money due is not satisfied by anything short of payment or a release in some form. The receipt is not conclusive and the parol evidence shows the amount received was not accepted as payment in full. If the interest was due by contract, it could not be satisfied or its existence negatived by mere conduct, affording ground for a contrary inference.
The rule here adopted will often work injustice as it has done here. A debtor may refuse payment and threaten defenses as a means of forcing a creditor, who is not in a situation to suffer delay without great hardship, to accept the principal sum without the interest and thus escape payment of a part of what he justly owes. Legal rules should make provision against such results.
Judge Williams unites in this criticism.