11 Ga. App. 162 | Ga. Ct. App. | 1912
1. Suit was brought by the Edwards Bottling Works against Jarnagin & Wright, on an open account, and the defendants relied upon the following facts to prove accord and satisfaction: The attorney for Jarnagin & Wright testified, that when the partnership of Jarnagin & Wright was dissolved, he endeavored to secure a settlement of the claims against them, on the basis of 25 per cent., with the exception of the claim of the Edwards Bottling
Even if the facts as testified to by the attorney for the. defendants were admitted, they fail to show an accord and satisfaction. “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.” Civil Code (1910), § 4329; Stewart v. Langston, 103 Ga. 290 (30 S. E. 35). But even if this principle of law was not controlling, the jury in the justice’s court clearly had the right to believe the testimony of the plaintiffs, that they had never received the letter containing the check. Hamilton v. Stewart, 108 Ga. 476 (34 S. E. 123). Besides, there was no proof that the check, even if it had been received, was ever paid, and it is well settled that a check is not payment of a debt until it is itself paid, unless expressly so agreed. Parker-Fain Grocery Co. v. Orr, 1 Ga. App. 631 (57 S. E. 1074); Watt-Harley-Holmes Hardware Co. v. Day, 1 Ga. App. 646 (57 S. E. 1033). It is only where there is a dispute as to the amount due, and one party tenders and the other accepts the check reciting that it is in payment in full of a demand, and the check is subsequently paid, that the reception and retention of a cheek can be set up as accord and satisfaction. Copeland v. Montgomery, 8 Ga. App. 633 (70 S. E. 30).
Judgment reversed.