57 Ga. App. 719 | Ga. Ct. App. | 1938
Lead Opinion
Mrs. Cynthia Jordan sued J. P. Belvin to recover damages for personal injuries resulting from a collision between the automobile in which she was riding and one driven by Belvin. The defendant demurred generally and specially to the petition. He also filed an answer and plea wherein he denied nearly all of the material allegations of the petition and pleaded accord and satisfaction. The plaintiff amended her petition by striking certain paragraphs therefrom and amplifying others, and pleading that the accord and satisfaction was obtained by fraud and was not binding on her. The defendant renewed his former demurrers to the petition as amended, and demurred to the amendment which averred that the accord and satisfaction was fraudulently procured. The exeeeption is to the judgment sustaining the demurrers as amended to the petition as amended and dismissing the ease.
The controlling question presented for our consideration, and the only one argued by counsel, is whether the plaintiff pleaded such facts as to nullify the accord and satisfaction pleaded on the ground of fraud. The defendant pleaded that on September 19, 1936, the plaintiff entered into a written agreement with him whereby she released him from “any and all liability and damages for the alleged injuries . . for . . $635; and that in pursuance of said agreement . . , the defendant paid said sum . . to the plaintiff,” thereby settling and extinguishing the present cause of action. The substance of the copy-agreement attached to the defendant’s answer is that for a consideration of $635, the receipt of which is acknowledged, “the undersigned hereby release and forever discharge J. P. Belvin . . and all other persons, firms or corporations liable, or who might be claimed to be liable . . from any and all claims, demands, damages, and actions . . resulting or to result from” the collision in question. This agreement appears to be properly signed. In paragraph 33 of the petition as amended the plaintiff pleaded that she was not bound by the release because “same was obtained through fraud, misrepresentations, and con: ealment of facts.” (a) “That
The defendant’s final demurrer was as follows: “1. This defendant renews his demurrer, both special and general, heretofore filed in this case, and moves that the petition as amended be dismissed. 2. Defendant .demurs specially to paragraph 33 of the amended petition on the ground that the facts set out are not sufficient to avoid the release therein referred to, for the reason that it does not appear that the State Farm Mutual Automobile Insurance Company was, or is, in any manner liable to the plaintiff in this case, and said insurance company is not a party to this case, and upon the further ground that the facts set out in said paragraph do not constitute such fraud, misrepresentation or concealment of facts as will authorize the plaintiff to avoid such release.”
Was the defendant responsible for the alleged fraudulent representations of C. M. Massey? We are of the opinion that the following averment of paragraph 33 of the amended petition is tantamount to incorporating the release in the petition: “Plaintiff avers . . that the release referred to in paragraph 18 of the defendant’s answer, a copy of which is attached to defendant’s answer, is void,” etc. “The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him, or subsequently ratifies the acts of another in his behalf.” Code, § 4-101. “The mere act of setting up by plea a stranger’s act as a satisfaction is of itself a ratification.” 1 C. J., p. 536, § 28. We are therefore of the opinion that in passing on the de
Judgment reversed.
Rehearing
ON MOTION ROE REHEARING.
We have stricken two lines in one place in the opinion, and the word “probable” in another place therein, but have adhered to the result. In his motion for a rehearing, the movant contends: “In making the statement in the decision in this case that Belvin, by setting up the release, ratified Massey’s fraudulent representations, the court overlooked the fact that nowhere does the petition show that Massey himself obtained the release, nor does it show that Belvin himself did not obtain the release, nor that in obtaining the release Belvin, or any one acting for him, had knowledge of Massey’s representations. Had the petition shown that Massey procured the release Belvin’s pleading of the release would undoubtedly have been a ratification of the act of Massey in procuring it, but in the absence of an allegation that Massey procured the release such a pleading would not be a ratification of the act of Massey on the part of Belvin.” We think the petition in effect at least alleges that Massey, the agent for the insurance company, made certain false and fraudulent representations in obtaining the release and that the insurance company, the indemnitor of the defendant, paid to the plaintiff $645 on
Rehearing denied.