Bass Dry Goods Co. v. Roberts Coal Co., 61 S.E. 1134

Bass Dry Goods Co. v. Roberts Coal Co.

61 S.E. 1134

Ga. Ct. App.

1908

Check Treatment

Powell, J.

Thе Roberts Coal Company had an account for coal, consisting оf a number of items against the Bass Dry Goods Company, amounting to $302.34. The Bass' Company disputed tire account, but finalby сonceded a liability for $194.64 thereоn, and tendered the coal company a check for this sum, bearing on its face the words, “in full to Dec. 1, 1902.” The account in question consisted of itеms charged prior to that date. The coal company, after hоlding the cheek for ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍some time, collected it, but wrote that it did not admit that the check covered the wholе amount due to December 1, 1902, and that it would insist upon payment of the remainder. The present action includеs a claim for $107.70 on account of coal prior to December 1, 1902, and an item of $81.33 for coal delivеred after that date. The jury gave а verdict for the full amount claimed; thе judge overruled the motion for a new trial, and the defendant excepts.

To quote from Chicago Ry. Co. v. Clark, 178 U. S. 353 (44 L. ed. 1099, 20 Sup. Ct. 924), cited approvingly in Redmond v. Atlanta & Birmingham Ry., 129 Ga. 140 (58 S. E. 877), “the cases are many in which it has been held that where an aggregatе amount is in dispute, the payment of а specified sum conceded to be due, that is, by including certain items but exсluding disputed items, on condition that the sum sо paid shall be received in full satisfaction, will be sustained as an extinguishment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍оf the whole.” In such cases, if the debtor tenders the sum as to which he is willing to concede a liability, on condition that it is to be accepted in frill settlement, the creditor must decline the tender and not retain and use the monеy, cheek, or other thing of value offered in full settlement. Redmond v. Ry., supra; Walker v. O’Neill Mfg. Co., 128 Ga. 835 (58 S. E. 475); Walker v. Wadley, 124 Ga. 286 (52 S. E. 904); Jenkins v. National Bldg. Asso., 111 Ga. 732 (36 S. E. 945); Hamilton v. Stewart, 105 Ga. 300 (31 S. E. 184), s. c. 108 Ga. 472 (34 S. E. 123). The subject is so thoroughly reviewed in the Redmond case that wе do not deem it necessary to distinguish the following cases, which, while ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍apрarently to the contrary in some of their phases, are neverthelеss clearly and ra*522tionally distinguishable. Carlton v. W. & A. R. Co., 81 Ga. 531 (7 S. E. 623); Armour v. Ross, 110 Ga. 403 (35 S. E. 787) ; Georgia Railroad Co. v. Gouedy, 111 Ga. 310 (36 S. E. 691) ; Robinson v. Leatherbee Co., 120 Ga. 901 (48 S. E. 380). The recovery as to the $107.70 is unauthorized; but there is no reason lor reversing the judgment as to the remainder of the recovery. The judgment, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍therefore, will be affirmed on condition that the plaintiffs in the court below will write off from their verdict the $107.70 and interest thereon.

Judgment affirmed, on condition.