59 Ga. App. 474 | Ga. Ct. App. | 1939
Mrs. W. E. Davis brought suit against Zaban Storage Company Inc. for damages sustained by her through the alleged negligence of the defendant in respect to certain household goods which she had stored in the defendant’s warehouse, some of which were damaged and the rest destroyed by fire. The defendant answered, denying liability,, and further set up a plea of accord and satisfaction by reason of a release executed by the plaintiff on March 7, 1938, subsequent to the fire, and reading as follows: “This hereby releases the Zaban Storage for any claim whatsoever in connection with damage to goods in lot No. 6699 stored in the premises at 12 & 14 Spring St., S. W., said damage occurring at and during a fire at said premises on December 15, 1937. Consideration for this release being the relinquishing of custody to the undersigned of no charges being made for storage from November 22 and the delivery out. It is understood that the relinquishing of these charges is purely a matter of good will and not as a matter of responsibility.” The plaintiff, by amendment, alleged that the
The evidence showed substantially the following facts: The plaintiff stored her household goods in the warehouse of the defendant on October 22, 1937, receiving therefor a receipt which also contained an acknowledgment by her in writing that, “I further acknowledge that I have been put on notice that said storage company carries no fire insurance whatever on my property stored with it, and I expressly agree that I will procure such insurance in my own name, and if I fail to do so, that the property is stored entirely at my risk, and the said company shall not be liable for any injury thereto or loss thereof by fire.” Storage charges were paid to November 22, 1937. On the night of December 15, 1937, after the warehouse had been closed, a fire of undetermined origin in the defendant’s warehouse destroyed part of the plaintiff’s goods and badly damaged the rest. The plaintiff appeared at the office of the defendant the following day for the purpose of inspecting her goods, but was requested to call back the next day inasmuch as on the first occasion the contents of the warehouse were in much confusion. The plaintiff testified that she did call, as requested, and saw and examined part of her goods, and was informed by Mr. Harry Zaban, president of the defendant corporation, that while he did not feel that the defendant was liable for the loss sustained by her it would, because of the high personal regard he entertained for her and particularly for her son, with whom he played golf and was on very friendly terms, repair such articles as could be repaired and would replace the others. The son testified substantially as did the plaintiff in this respect, except that he stated that Zaban informed her that the replacements would be made from time to time from articles left with the defendant for storage by others and which, because of nonpayment of storage charges, the defendant was accustomed to sell or give away. In that respect Zaban testified: “I explained to her that it was not our responsibility under our warehouse receipt, but I would do everything I could to
The plaintiff contends that she is not bound by this release inasmuch as it was signed by her under a fraudulent misrepresentation by the defendant that her goods had been properly repaired and replaced, and that after they had- been delivered to her she discovered that they were practically worthless; that while she would be bound by the release unless upon discovery of the fraud she returned, or in a reasonable time offered to return, whatever of value she had received and rescind the agreement, in the present case she received nothing and the defendant gave up nothing, because the goods having been damaged or destroyed by fire through the defendant’s negligence, and not having been repaired or replaced, she was not due the defendant any sum for storage or delivery charges, and that the jury should have passed on the question of the negligence of the defendant under the pleadings and the evidence.
No discussion is necessary to demonstrate that the release signed by the plaintiff represented an accord and satisfaction of a disputed claim. It is the general rule that where one party receives something of value from another under an accord and satisfaction he can not avoid the settlement on the ground of fraud without restoring or offering to restore the fruits of the accord and satisfac
We think that the defendant carried the burden thus imposed. It was áhown that the building in which the goods were stored rvas of concrete and reinforced steel construction, a fire-proof building, so called, equipped with an automatic alarm system and fire extinguishers-on each floor, a bell being supposed to ring on the outside of the building when the heat inside the building reached a certain degree; that the number of the fire extinguishers was that prescribed by the Southeastern Underwriters Association; that the electric wiring was sunk inside the concrete and that there was no furnace in the building, that no smoking was permitted therein and signs were erected as notice to that effect; that Titter was not allowed to accumulate in the building but was carried out every-
Judgment affirmed.