LaSalle National Insurance v. Popham, 188 S.E.2d 870

LaSalle National Insurance v. Popham

188 S.E.2d 870

Ga. Ct. App.

1972

Check Treatment

NELSON, FARBER & FRANSON, INC. v. BEN HYMAN & COMPANY, INC.

46924

Court of Appeals of Georgia

February 29, 1972

Rehearing Denied March 17, 1972

125 Ga. App. 724

HALL, Presiding Judge. Defendant in a suit on account appeals from the dismissal of his counterclaim for interest on a note executed by the plaintiff in 1965 and on which the principal was fully paid in 1969.

While the undisputed evidence shows that the parties arrived at an accord and satisfaction, this affirmative defense was neither pleaded nor raised by written motion. See

Rivers v. Cole Corp., 209 Ga. 406 (73 SE2d 196); ; ; . For this reason, the trial court erred in dismissing the counterclaim.

Judgment reversed. Quillian, J., concurs. Pannell, J., concurs specially.

ARGUED FEBRUARY 1, 1972—DECIDED FEBRUARY 29, 1972—REHEARING DENIED MARCH 17, 1972.

Fine & Block, Craig R. Goodman, for appellant.

Barwick, Bentley & Binford, Gilbert B. Meredith, M. Cook Barwick, for appellee.

PANNELL, Judge, concurring specially. I concur in the judgment of reversal under the authority of

Standard Accident Ins. Co. v. Ingalls Iron Works, 109 Ga. App. 574 (136 SE2d 505), decided under the summary judgment procedure which has been neither overruled, criticized, disapproved or distinguished by this court.