130 Ga. 766 | Ga. | 1908
The plaintiff brought suit on a health-indemnity' policy of insurance, and obtained a verdict. To the refusal of the court below to grant a new trial, a bilí of exceptions was filed by the defendant, making several assignments of error. The policy ■of insurance sued on obligated the defendant, in the event the plaintiff, as a result of any one of certain enumerated diseases,' was .continuously and wholly disabled from the performance of all-duties pertaining to his occupation, to pay to him $10 per week during the continuance of such disability, for a period not exceeding 26 weeks. The plaintiff alleged, that he became sick with typhoid feverj by reason of which illness and its effects he was to
Under the view we take of the case, it is only necessary to consider the assignment of error complaining of the action of the -court in permitting the plaintiff, over the objection of the defendant, to give the following parol testimony with respect to the document above set out: “I told Mr. Moore, when he brought me the receipt to sign, that I had a claim in for six weeks, and that I could not afford to sign it. He told me, ‘As a matter of course, you are sick now, and you will be entitled to the whole claim, and
The fact that the consideration for which the claim was settled was less than the full amount the plaintiff, under the proofs furnished by him, would be entitled to receive would not affect the validity of the release. The Civil Code, §3735, provides: “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.” The company having paid the full amount of the consideration recited in the release, it became fully executed and binding as to the subject-matter covered thereby, which, as we have above pointed out, of necessity covered the full 'cause of action which the plaintiff was seeking to maintain under the policy. The release stated that the company was released “from all, every, and further liability caused or arising from the above-named disability.” The disability referred to was “an illness beginning September 23rd, 1903.” It is on account of this disability that the plaintiff brought the present suit; and the suit can not be maintained, in the face of this release outstanding. In no event could the plaintiff maintain an attack on the release, in the absence of proper allegations in his petition and an offer on his part, prior to the commencement of the suit, to rescind, and a tender back to the defendant of the amount which it had paid in order to obtain such release. East Tenn., V. & G. Ry. Co. v.
There being no ambiguity in the contract of release, it could not be contradicted or varied by parol, and the plaintiff not being in a position entitling him to have it set aside, even if facts and circumstances sufficient to accomplish this result could be proved, testimony was not admissible which tended to show that the plaintiff was induced by fraud to execute it. The court, therefore, committed error in allowing the testimony of the plaintiff hereinabove set out. Judgment reversed.