Garbutt Lumber Co. v. Wilcox & Parsons, 6 Ga. App. 52

Garbutt Lumber Co. v. Wilcox & Parsons

6 Ga. App. 52 | Ga. Ct. App. | 1909

Hill, C. J.

Wilcox & Parsons brought suit against the Garbutt Lumber Company for a balance claimed to be due on a contract. The defense filed was that there had been full settlement of all demands arising out of the contract sued on. The jury found a verdict for the full amount, with interest; and the defendant’s motion for a new trial was overruled. The case made by the evidence is *53substantially as follows: There was a dispute between the parties as to the correct amount clue under the contract ; Wilcox & Parsons contending that the amount was $135, and the Garbutt Lumber Company insisting that it was $75. After some correspondence between the parties on the subject, without an agreement as to the amount due, Wilcox & Parsons drew a draft on the Garbutt Lumber Company for $125, and delivered it to Wilkinson, cashier of the Citizens Bank of Abbeville, for collection. Wilkinson notified the lumber company by letter that he held the draft for collection, and received a reply from the lumber company denying the indebtedness of $125, but stating' that it was willing to send check for $75, if this was satisfactory. Wilkinson notified Wilcox & Parsons that the lumber company would not pay the $125, but would pay $75. Wilcox & Parsons thereupon drew another draft through the bank on the lumber company for $75, and this draft was promptly paid. When Parsons, a member of the firm of Wilcox & Parsons, was informed by Wilkinson that the lumber company refused to pay the draft for $125, and would pay only $75 in settlement of the matter, he (Parsons) drew the draft for $75, and said that he would “see about the balance.”

We think that Wilkinson was the agent of Wilcox & Parsons, and the information that he had, that the lumber company refused to pay the $125 in settlement, was information received by them. But this is immaterial, as Parsons, a member of the firm- of Wilcox & Parsons, admitted that he had actual knowledge that the lumber company denied owing the $125, and would pay only $75, in full settlement. With this knowledge, Wilcox & Parsons drew the draft for the $75, and received and kept the money. The dispute as to the amount due was settled, and the debt was paid in full. If Wilcox & Parsons did not intend that the payment of the $75 by the lumber company should be in full payment of the debt, they should have refused the $75 and not have drawn the draft for this amount when it was offered by the lumber company in full settlement, and collected and retained the money. Bass Dry Goods Co. v. Roberts Coal Co., 4 Ga. App. 520 (61 S. E. 1134). The verdict to the contrary was wholly unauthorized by the evidence and the law, and the judgment refusing a new trial must be Reversed.