51 Ga. App. 232 | Ga. Ct. App. | 1935
Plaintiff brought suit against the coal company for damages for personal injuries, alleging that the injuries were brought about by negligence of the defendant’s servant and employee in the operation of an automobile truck belonging to the defendant, in such a manner as to collide with an automobile belonging to the plaintiff, in which he was riding. The defendant denied that it was negligent in the particulars charged, and set up that the plaintiff had agreed with it that, if it would pay for the
The evidence fails to show such an accord and satisfaction as would bar the plaintiff from prosecuting the action. The plaintiff paid for the repairs to his automobile, and refused to sign the release to the defendant. The alleged accord and satisfaction was not accepted by the plaintiff. The alleged satisfaction was not paid by the defendant, but by the plaintiff. See Code of 1933, § 105-1901; Edwards Bottling Works v. Jarnagin, 11 Ga. App. 162 (74 S. E. 1004); Long v. Scanlon, 105 Ga. 424 (31 S. E. 436); L. & N. R. Co. v. Cox, 133 Ga. 763 (66 S. E. 1088); Chamblee v. Davis, 88 Ga. 205 (14 S. E. 195); Molyneaux v. Collier, 13 Ga. 406, s. c. 17 Ga. 46. “An agreement by a creditor to receive less than the amount of his debt can not be pleaded as an accord and satisfaction, unless it be actually executed by the payment of the money.” Code of 1933, § 20-1204. See also § 20-1201. Willingness or
This case does not fall within the rule that if the promise or agreement itself, and not the performance thereof, is accepted in satisfaction of the demand, and the agreement to accept is based on a sufficient consideration, the demand is extinguished and can not be the foundation of an action, whether the original demand was in tort or contract. Under these circumstances, there is a valid accord and satisfaction even though the performance is not complete. According to the plain meaning of the alleged agreement in this case, it was the performance instead of the agreement or promise that was to be in satisfaction. Byrd Printing Co. v. Whitaker Paper Co., 135 Ga. 865 (70 S. E. 798, Ann. Cas. 1912A, 182); Brunswick &c. R. Co. v. Clem, supra; Molyneaux v. Collier, supra.
The evidence supports the verdict in the plaintiff’s favor, and, the trial court having committed no error of law, it w;as not error to overrule the defendant’s motion for a new trial.
Judgment affirmed.