7 S.E.2d 321 | Ga. Ct. App. | 1940
The declaration in attachment showed on its face a valid accord and satisfaction between the parties, and the court erred in overruling the defendant's general demurrer.
1. The question presented for determination is whether or not the declaration in attachment shows on its face an accord and satisfaction between the parties. "Where the amount of a debt is unliquidated or disputed, and the debtor tenders his check for a less amount, containing the statement that it is `in full of all demands against' the maker, and the creditor accepts the check, indorses it, and collects and retains the money, there is a valid accord and satisfaction, although the creditor, at the time of receiving the check, protests to the debtor that he does not accept it in full payment, but accepts it `only as a credit on account.' (a) This ruling is not altered by the fact that, in a letter sent to the debtor on receipt of the check, the creditor, after stating that he accepts it `only as a credit on account,' adds: `Please advise promptly or stop payment on the check, if this is not satisfactory;' and that, after holding the check for two weeks without any reply from the creditor, he cashes it and uses the money. (b) It is immaterial that the creditor, after receiving the check, erases therefrom, without the consent of the debtor, the words `in full of all demands against' the maker."Ryan v. Progressive c. Co.,
The declaration showed that a dispute existed between the parties as to the amount of commissions owed by the defendant to the plaintiff, and that during the existence of this dispute the defendant mailed to the plaintiff a check in full settlement of all commissions due the plaintiff, as contended by the defendant, the check having the following endorsed thereon: "Paid in full for all commissions due up to April 1, 1938, including April drawings," and that the plaintiff, after adding to this endorsement these words, *702
"Based on statement of April 27, 1938," accepted the check, cashed it, and retained the proceeds thereof, but in doing so wrote the defendant a letter stating that although he was accepting the check he contended that there was an error in his commissions and asked the defendant to check over sales made in his territory. The letters attached to the declaration as exhibits show that there was a dispute between the parties as to what sales the plaintiff was entitled to commissions on, the defendant contending that the sales did not amount to as much as claimed by the plaintiff, as many of the customers had canceled their orders and that under the contract of employment the plaintiff was not entitled to any commissions on sales amounting to less than $20 or on "house accounts" or "close-out" sales. The plaintiff contended that he was entitled to commissions on all goods shipped into his territory. It was held in Hooker-BassettCo. v. Ga. Hardwood Co.,
2. Furthermore, the check was tendered by the defendant in full payment of commissions due the plaintiff and was accepted and *703
the proceeds retained by the plaintiff which constituted an executed accord and satisfaction, under the facts alleged. "Accord and satisfaction is where the parties, by a subsequent agreement, have satisfied the former one, and the latter agreement has been executed. The execution of a new agreement may itself amount to a satisfaction, where it is so expressly agreed by the parties; and, without such agreement, if the new promise is founded on a new consideration, the taking of it is a satisfaction of the former contract." Code, § 20-1201. "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, or the giving of additional security, or the substitution of another debtor, or some other new consideration." Code, § 20-1204. Where a sum less than the amount of the claim is tendered by the debtor in full settlement of the claim, and the same is accepted by the creditor, the agreement is executed and results in a valid and binding accord and satisfaction. Rogers v. Ball,
3. The words, "based on statement of April 27, 1938," added by the plaintiff to the endorsement or condition entered on the check by the defendant, "Paid in full for all commissions due up to April 1, 1938, including April drawings," did not prevent its acceptance from constituting an accord and satisfaction. Ryan v. Progressive c. Co., supra; Redmond v. Atlanta Birmingham Air-Line Ry., supra.
4. The court erred in overruling the defendant's general demurrer.
Judgment reversed. Stephens, P. J., and Felton, J., concur.