The opinion
Thornton, J., concurring.
I concur in the judgment, for the reasons stated in the decision in Davis v. Porter, 66 Cal. 638 . In that case the main question presented in this case was fully argued by counsel, considered, and decided. I am of opinion that the decision there made was correct in every particular, aúz., that mandamus would not lie to command the payment of interest on the interest mentioned in the coupons. The prayer in the petition for the mandate herein is for a writ commanding the payment of both coupons and interest on them. It was properly refused, for the reason that, as asked for, it would include interest on coupons, which the court could not lawfully grant. The demand on the treasurer also included both coupons and interest on coupons. It was, therefore, proper to refuse the writ. (Price v. Riverside Land & I. Co., 56 Cal. 436 .) While it would have been error to refuse the writ for the payment of the coupons, it was not error to refuse it for the payment of coupons and interest on them.
*557 I am, however, of opinion that the holder of overdue coupons has the right to have, under the statute, as it has stood from the date of the first statute on the subject of interest enacted in this state, and as it stands now, from the city of Sacramento, interest on such overdue coupons. In that respect the city of Sacramento is like any other debtor. The refusal to pay such interest would be repudiation; nothing more nor less.
I am of opinion that the treasurer had no right to demand, as a condition of paying such coupons, that they should be surrendered to him. The holder of such coupons has a right under the general statute (Civ. Code, sec. 3137), and under the law, if no statute had been enacted, to retain them, for the reason that he has a claim upon them for interest. The payment of the principal of the coupon does not pay it in full; a partial payment is only thus made. The debtor (the city of Sacramento) can only require that a receipt for the amount paid be written on each coupon. (Civ. Code, sec. 3137.) The treasurer can require no more, and the holder has a right to retain in his possession the coupons, with the receipts written on them, as evidence of his claim for interest not paid.