36 Ga. App. 372 | Ga. Ct. App. | 1927
(After stating the foregoing facts.) It seems that from the testimony of Mr. Heath, the defendant, and Mr. New, his attorney, the inference is demanded that the transaction as respects the payment did not take place between the plaintiff and the defendant personally, but took place between Mr. New and Mr. Crockett as attorneys for the respective parties. The inference is also demanded that Mr. New’s statement in his testimony, that at the time he made the payment he settled both suits and “was making a final and complete settlement,” is merely his conclusion as to the effect of the transaction. Mr. New testified, and it is undisputed, that when he was making the payment he expressly stated to Mr. Crockett that this payment settled the attorney’s fees, and Mr. Crockett replied, “I am accepting your tender in the suit.” This necessarily referred to the tender as contained in the petition for injunction. This statement of Mr.
It appears that the money was not accepted on the terms of the tender of Mr. New, unless the tender in the petition for injunction was the same as the tender made by Mr. New. Nowhere in the petition for injunction does it appear that the plaintiff therein made any tender in full settlement of the present plaintiff’s claim. The only tender alleged in the petition, and therefore the only tender accepted by Mr. Crockett for his client, was a mere recital by the present defendant in the petition for injunction of a tender of the amount which he admitted he owed the present plaintiff, the 'then respondent, without any suggestion that such tender was made in full' settlement of the claim. The allegations in the petition for injunction with reference to tender are as follows: “Petitioner . . has also tendered to the defendant all that she demands in said suit, or the advertisement hereinafter referred to, except the attorney fees and one payment of $80 on April 1, 1920, which payment defendant made to her as alleged in his plea hereto attached. Petitioner . . with these two exceptions . . has tendered to defendant all that she demands, which tender was refused, and defendant does herein again tender to defendant all 'that she demands in said suit, or in the advertisement hereinafter referred to and offers to tender the same in lawful tender in open court. . . Notwithstanding said issues are pending and the plaintifE therein elected her remedy and refused a lawful tender of all the petitioner is due her, she advertised said property. . ' . Petitioner having tendered defendant all that he owes her, and now tenders, the same in open court . .” Thus it appears that the amount tendered was less than the amount claimed by the present plaintiff by $80 and the attorney’s fees.
The statement made by Mr. Crockett to Mr. New, when Mr. Crockett accepted the money paid by Mr. New, amounted to a refusal by Mr. Crockett to accept the money in accordance with the •terms of Mr. New’s tender. It follows that although the money was tendered in full settlement by Mr. New, it was not accepted in full settlement by Mr. Crockett. There was therefore no meeting of the minds and no agreement in the nature of an accord and satisfaction. The money, having been actually paid by Mr. New to Mr. Crockett, must necessarily be treated as a payment on ac
We are therefore of the opinion that the verdict for the defendant, which necessarily finds that the payment made was in full settlement of the entire claim of the plaintiff, was without evidence to support it.
Furthermore, it does not appear that Mr. Crockett had any authority from his client to receive the money paid, which was less than his client’s claim, in full settlement of his client’s demand; and if the evidence could be construed as warranting the inference that there was an agreement between'counsel to the effect that the payment was made in full settlement .of the plaintiff’s demand, and that Mr. Crockett received the money in full settlement of his client’s demand, it does not appear that his client received the money with knowledge of any such agreement, or that she otherwise ratified any such act. Without special authority an attorney can not enter into an agreement binding his client to receive anything less than the full amount of his client’s claim in full settlement thereof. Civil Code (1910), § 4956. Kaiser v. Hancock, 106 Ga. 217 (32 S. E. 123). For this reason also the verdict for the defendant is without evidence to support it.
It appears from the pleadings that, but for the alleged agreement of accord and satisfaction, which as we have held is not sustained by the evidence, the plaintiff is entitled to attorney’s fees. There is no evidence in support of the defendant’s plea of payment of $80 over and above the sums credited as payments by the plaintiff.
Judgment reversed.
