53 Ga. App. 80 | Ga. Ct. App. | 1936
Camilla Walker brought suit against the Atlanta Life Insurance Company, alleging, in part, that her son Robert Walker had $1000 insurance with the defendant company, payable to her as beneficiary; that her son died in Atlanta on October 22, 1933, while the insurance was in force; that petitioner did not learn of his death until some days subsequent thereto; that she went to Atlanta, identified the body as that of her son, had it interred at an expense of $85, and notified the defendant of the death; that “ representatives of the insurance company presented themselves at her home in Athens, Georgia, and asked for the policy, stating that they had come to settle the insurance with her;” that “they presented a paper for her to sign, copy of which was not left with her;” that “she surrendered the policy to the representatives of the company;” that “upon receiving the policy and the paper which she had signed, the representatives of said company left her $50 in cash, stating that was all she was entitled to;” that “the insurance company is indebted to her in the amount of the policy, less the $50 heretofore paid her;” that “the representatives of the company practiced a fraud upon her in procuring said policy and in procuring her signature upon what they
The petition alleges that the policy was in full force at the time of the alleged death of the insured. The release shows that the $50 paid the plaintiff purported to be $105.33, refund of premiums, less $55.33 cost of the investigation made by the defendant. Why the cost of the investigation, made by the company for its own interest, should be deducted from the refund of premiums paid to the plaintiff, is not shown. Neither is it shown why the cost of the investigation happened to be the exact odd number of dollars and odd cents that would leave even $50. This is a material consideration, since it purports to be a refund of premiums rather than a mere payment of $50 for a release, and since the transaction is alleged to be fraudulent. This $50 was paid to the plaintiff for a surrender of the policy. It is recited in the release that the one dollar (which the plaintiff alleged was never paid to her) was in full satisfaction of the claim she had filed for the death of her son. It must be borne in mind that the decision of the trial judge in no way determined that the plaintiff was- or was not deceived by the representatives of the defendant, or that the body interred was or was not that of the plaintiff’s son. It merely holds that the amendments were allowable, and that the petition as amended was not subject to the demurrer or the motion to dismiss. This leaves upon the plaintiff the burden of proving that she was deceived by the alleged false representations resulting in her signing the release, and that her son, the insured, was dead. It is well settled that fraud in the procurement of a release, if- properly pleaded, subjects the instrument to investigation. If, as alleged, three representatives of the company went to Athens to persuade one negro woman, not versed in business transactions, to settle a $1000 claim for $50, and made false and fraudulent representations to her, and told her that the company, after a thorough and searching investigation, had discovered that the body interred was not that of her son, and caused her to “become uncertain in her mind by reason of the statements made by them” as to the death of her son, and so caused her to accept the $50 and sign a release, then such release should be set aside. The fact that the plaintiff previously went to Atlanta, and after seeing the body instructed the undertakers to
The plaintiff alleges that she was deceived by false and fraudulent representations of the' defendant, which induced her to sign the release. This is purely an allegation of fact, and raises an issue of fact which this court has no authority to decide. Of course if the petition had shown that the plaintiff, at the time of signing the release, positively knew that the representations of the defendant were false, then she could not have been deceived by the representations of the defendant, and the release would be binding. But the petition does not show this. According to the allegations, three representatives of the company persuaded the plaintiff that she was mistaken in her original identification, she having become “uncertain in her mind by reason of the statements made by them;” and
Was the plaintiff excused from restoring the $50 received from the defendant ? This amount was paid her “for the surrender of said policy for cancellation.” She did surrender said policy for cancellation, and the company now has it, though the plaintiff contends, in substance, that it should not be canceled. She alleges “that by reason of poverty she is unable to tender back the fifty dollars, even though she was required so to do.” The general rule is, that, in order to rescind, the one defrauded must, upon discovery of the fraud, restore or offer to restore whatever he has received by virtue of the contract. The plaintiff does not attempt to hold the $50 and also recover, in addition thereto, the full amount of the policy. Her petition alleges that “the insurance company is indebted to her in the amount of the policy, less ihe $50 heretofore paid her.” If the plaintiff is successful in recovering that which she seeks to recover, she will be entitled to the $50 and much more. “An exception to the general rule stated above is that ‘a party is not obliged to return that which he is entitled to retain,’ as alleged in the petition in this case, to wit, that the petitioner was fraudulently induced to sell and transfer her interest in an estate to others interested therein, for a sum much less than the amount due her as one of the heirs. Treating the allegations of the petition as true for the purpose of considering the demurrer, the plaintiff is entitled to many times the amount received by her upon
The release also provided for the payment of the “further sum of $1 in full satisfaction of all claim or demand” the plaintiff might have. The petition alleges that this dollar to be paid in satisfaction of the plaintiff’s claim was never paid. The release, as a whole, called for the payment of $51, all of .which was never paid. In Brunswick & Western Ry. Co. v. Clem, 80 Ga. 534, 539 (7 S. E. 84), the court said: '“The complaint is, that if there was a contract of accord and satisfaction partly performed, the plaintiff could not rescind as to the part performed without restoring the defendant to its original condition; and this is certainly the ordinary rule of rescission where it is not a matter of mutual consent. Code, § 2860 [Code of 1933, § 20-906], But the rule does not apply to accord and satisfaction, because in order for there to be accord and satisfaction the accord must be executed. That is what makes the satisfaction. As long as the accord is executory, although it is partially performed, the original cause of action is not extinguished, and an action may be brought upon it, and the remedy for the defendant is to plead his part performance as satisfaction pro tanto. He gets credit for all he has paid upon it, but the right of action is not extinguished by an accord merely, without complete satisfaction, where the parol contract is that performance, not mere promise, is to constitute the satisfaction.” In Long v. Scanlan, 105 Ga. 424, 426 (31 S. E. 436), the court said: “When a plea of accord and satisfaction is filed by a defendant, he must show full performance of its terms by himself and a full acceptance by the plaintiff. Unless he show this, the accord is no bar to a suit upon the original contract or claim.. . . The point is made that Mrs. Scanlan could not rescind the written agreement without restoring the status. . . She at least knew she had signed it
Judgment affirmed.