*1
Attorneys,
for
District
Weathers,
Smegal, Assistant
Charles
v. MITCHELL.
77889. MITCHELL
(381 SE2d
Sognier,
husband,
Mitchell,
of her
of the estate
Exie Harrell
as executrix
promis-
Mitchell on
Mitchell,
brought
returned a ver-
jury
sory
in favor of the decedent.
note executed
Mitchell,
judgment
for
the trial court
dict for Harriet
verdict, and Harriet Mitchell
notwithstanding the
Exie Mitchell
appeal.
July
that on
The evidence adduced at trial disclosed
son,
his
riverfront
lots to
appellee’s decedent sold two
$10,000
Mitchell,
wife,
for a
down
exchange
in
and his son’s
$25,000
pur-
both
note for
payment
promissory
and a
ver-
July
although
chasers. The note was due
Appellant
testified
bally
annual
would be made.
agreed that
$1,500
made their first
that when she and her husband
promissory
a new
July
sign
Johnnie Mitchell asked them to
response
in
outstanding, and that
reflecting
note
the reduced balance
obligor. Appellant
John Lewis Mitchell executed a new note as sole
August
in
prior
further
testified that
to Johnnie Mitchell’s death
three sub-
procedure
the same
John Lewis Mitchell followed
$5,000,
father a new
sequent payments
giving
each time
his
totalling
remaining balance. John
note on which he was sole
May
in
and on
airplane
Lewis Mitchell was killed
crash
balance of
August
appellee filed this action to recover the
$18,500
July
owed on the
1981 note executed
John
by granting
contends the trial court erred
to authorize the
appellee,
n.o.v. to
as sufficient evidence was adduced
1981 note. The
jury to find a
from the
releasing appellant
novation
Lewis
the notes John
court found there was
evidence that
by valid considera-
supported
Mitchell executed as sole
were
However,
tion.
as there was evidence sufficient to authorize
supported
valid
of these notes were
conclude that one or more
find
family dispute,
we
consideration
the form of settlement of a
grant
n.o.v. to be in error.
of the sub-
the sale
The evidence adduced at trial revealed that
had led to consid-
to John Lewis Mitchell and
Lewis Mitchell’s
family. John
erable dissension within the Mitchell
they
that
were
testified
siblings, Sara Reed and Harold
both
had
previously
unhappy
about
family members,
been
all
and Reed stated
available
use
ownership
prop-
profit
she
erty. Appellant
from her
did not want
angry
so
and Harold Mitchell were
testified
Reed
they
speak
did
to John Lewis Mitchell for
after
months. Both
sale that
appellant and her sister also testified that John Lewis
family harmony,
do
he
Mitchell desired to restore
order to
so
agreed
from note
and
ing
father
to remove
name
aris-
*2
accordingly
transfer,
more
out of the
and
one or
obligor.
notes were
with John Lewis
as the sole
Al-
Mitchell
(273
Irby
though
relying
Brooks,
on
v.
246
794
Ga.
183) (1980),
untrustworthy
SE2d
say,
held that this
hear-
testimony regarding
such
of
has
declarations
a decedent
since
credibility
admissible,
been held to be
testimony
of
of
and assessment
(372
jury.
Swain v. C & S
is left to the
“Our . . . courts have favored the furtherance of agreements family disputes. agree [Cit.] of ‘An settlement controversy voluntary family ment to a settle will not be considered equity consideration, and without will but be enforced as a fair family independent arrangement being compromise of its of doubt rights. compromise agreements [.] ful . . To render valid such it is doubt; not essential that the matter should be in real it is suffi cient subject it should consider so far doubtful as to make it the ” compromise.’ Caldwell, 393, of Holsomback v. 218 Ga. 395- family 396 SE2d Once the existence of a is settlement “ inquiry established, will be enforced without an ‘into the ade quacy inadequacy [Cit.]” Hancock v. Han consideration.’ (3 (b)) (156 354) (1967). Although cock, 481, 223 Ga. en family agreements equitable remedy, forcement of settlement is an equitable jurisdiction this court has v. over Alderman Cren (3) 178) (1951), shaw, 71, 208 Ga. overruled other grounds, (1) (213 Wiley Wiley, (1975), v. 233 Ga. may family and thus we consider whether execution of a settlement agreement provided consideration for later notes. Construing uphold verdict, the evidence we find the obligor, authorized conclude that John Lewis as sole father, executed one or more notes in favor of his the consideration being for these notes the desire of father and son settle controversy that had arisen after Johnnie Mitchell’s sub- Lazenby, to his Belt son and see (2, 81) (1906),thereby releasing appellant 767, 771-772 judice. 13-4-5; on the note see sub See OCGA also Leasing Systems (1) Easy Street, inquire We need whether this settlement agreement fully accomplished objective restoring harmony proof of an of execution within the Mitchell because family controversy to establish is needed is all that made to resolve a the existence of consideration obligation there- for enforcement appellee supra Hancock, not leave at 487. This result does under. See bringing option remedy an action she has the without a Lewis Mitchell. the estate of John *3 supported by § A novation must be a new consideration. OCGA Maguire Ivey, generally; In 13-4-5 only original case, the instant the difference between the note sued solely subsequent allegedly the *4 Grant of notwithstanding the verdict was proper. Accordingly, I respectfully majority must dissent opinion’s contrary conclusion.
I am authorized to Judge Beasley joins state that this dissent. Decided March
Rehearing denied March Hurt, Hyman, Hyman, & Thomas H. Pfeiffer Gary McCorvey, English Thomas, Richard
77894. HOWE v. ROBERTS et al. Chief February appellant-plaintiff purchased 8, 1980, On a home from (Cor- appellee-defendant Douglas Associates, & Inc. William Roberts poration). Corporation appellant express extended to war- period year February following closing.” “for a of at least On appellant problems registered detailing mailed a letter experienced that he had with the house. This letter was received on February 9, 1981. February appellant warranty
On filed a breach of magistrate against appellee-defendant court. The suit was filed Wil- Douglas president Corporation. Roberts, liam who is the of the On pleadings 11, 1987, however, March add the so as to amended Corporation party-defendant proceedings. as a to the magistrate ultimately against court found in favor of Corporation, but it dismissed the action as Roberts.
After a de novo to the state counterclaim against appellant litigation Torok, Yost v. for abusive under granted summary judg The state court appellees appellant’s warranty inment as to breach of claim appellant’s Ap and denied Yost motion to dismiss the counterclaim. pellant appeals from these orders. grant summary judgment 1. It was not error to favor Rob- warranty Corpo- erts. The record shows that the was extended ration, whereby Roberts, and that offered no evidence piercing corporate veil would be authorized. See Whitehead, Amason v. Summary Corporation in favor running based merates this of the statute of limitation. enu-
ruling as error. year applies “[T]he six commence[s] statute of limitation Corporation] by [appellant] run from [the the date was notified Benning of the v. defects in the Constr. Co. construction . . . .” Enter., Lakeshore Plaza 429-430 (1977). Assuming deciding initiation of his February 5, 1987, limitation, action on was within the statute of Corporation party-defendant was not added as a to the action until clearly March run. at which time the statute of limitation had Corporation adding unless the as a amendment filing defendant relates back com- to the date of the jury’s verdict direction that the we reverse with be reinstated. remaining 2. Our decision in Division renders moot enumeration of error. appellee’s motion for decision in Division view of our damages for frivolous is denied. Judgment Birdsong, Pope Banke, J.,P. reversed with direction. Beasley, Deen, J., J., Benham, JJ., J., P. concur. McMurray, disqualified. J., dissent. P. Presiding Judge, dissenting. Deen, and accord and asserted the defenses of novation granted judgment satisfaction. The trial court nowithstanding competent support finding verdict, evidence to defenses, and, event, those of consideration for total lack either a novation or an accord and satisfaction.
Notes
John Lewis Mitchell omission of the consideration was at the time of the to Johnnie Mitchell was obligors. simply, Quite as one of the no new given. agree- “Accord and satisfaction occurs where the to subsequent agree- agreement, ment, the former have satisfied agreement ment, and the The execution of a latter has been executed. agreement may itself amount to a satisfaction of the former agreement, parties; expressly agreed by and, where it is so agreement, promise such tion, new considera- the new is founded on a taking agreement.” OCGA of it is a satisfaction former App. § 13-4-101; Kent v. First Nat. (1938). Additionally, “[a]n be of some accord and satisfaction must advantage, legal equitable, have the or to the creditor or it shall not agree- barring legal rights effect of him from his under the ment.” OCGA 13-4-102. case, Mitchell was the instant there was no that Exie evidence empowered, even execution at the time of John Lewis Mitchell’s siblings, agree and satis- the two notes in to an accord favor of his to Moreover, the ar- faction on behalf of the estate of Mitchell. any payment the benefit of rangement, gave which neither the estate estate, hardly any to result advan- nor increased the could be said tage or benefit Accord and satisfaction is an affirmative to estate. defense, McCul- party proof. it has the burden of asserting Mobiland, Inc., lough The appellant’s proof in this case failed to raise an issue of fact as to express agreement creditor’s the existence of a new consideration. majority opinion posture confuses the factual of this case. As above, discussed asserted two novation and alleged accord and satisfaction. The claim of novation related to the agreement between Johnnie Mitchell and John Lewis Mitchell omit Harriet obligor alleged Mitchell as on the renewal notes. claim of accord and satisfaction concerned John Lewis Mitchell’s sub- sequent portion purported sale of a to his niece and of the remaining executing promissory indebtedness anticipated notes to the regard- heirs of Exie Mitchell. The ing harmony Mitchell’s motivation to restore re- only to lated sale to the niece and was no considera- tion whatsoever earlier transaction between Johnnie Mitchell and John Lewis Mitchell when the remove Mitchell as supposedly occurred. Concerning novation, the alleged evidence was that John requested that Harriet Mitchell be omitted as obligor on the renewal notes because he spare wanted to her the acrimony familial over the father’s sale the property to John Lewis Mitchell and Harriet Mitchell. Not even the claimed that his motive so, was to harmony by doing restore good reason: removal obviously of Harriet Mitchell would not i.e., eliminate the her, stated basis for the family’s ill-will towards her ownership of property, because her name remained on the war- Indeed, deed. if anything, omission of Harriet Mitchell as obli- gor promissory note, on the pay eliminating for her ownership interest, logically feelings would exacerbate bad held towards Harriet Mitchell. In summary, the correctly trial court concluded that evidence totally failed to show either novation or accord and a satisfaction.