42 Ga. App. 713 | Ga. Ct. App. | 1931
Lead Opinion
J. E. Woods sued C. L. Redman on a promissory note. The defendant pleaded an accord and satisfaction in that it had been agreed between the parties that the indebtedness, represented by the note sued on, which was for the purchase-money for land to which the defendant held a bond for title, had been satisfied by the defendant’s acceptance of an offer of the plaintiff to cancel the indebtedness by surrendering the note to the defendant in exchange for the defendant’s return of the bond for title, and that this offer was accepted by the defendant and the possession of the land surrendered to the plaintiff. It appears from undisputed evidence that the defendant received a letter signed by the plaintiff which, after referring to the indebtedness represented by the note, contained a statement as follows: “I suggest an exchange of papers for closing it out.” This the defendant construed to mean the cancellation of the indebtedness by his delivering the bond for title to the plaintiff and surrendering the land and receiving in return therefor from the plaintiff the defendant’s canceled note. The defendant accordingly, in a letter to the plaintiff, accepted this offer, and followed this up with a tender of the bond for title to the plaintiff. The plaintiff rejected the defendant’s offer, and afterwards brought suit upon the note. The court directed a verdict for the plaintiff and the defendant moved for a new trial.
The question is, does this alleged agreement between the plaintiff and the defendant constitute an accord and satisfaction of the defendant’s debt? Section 4326 of the Civil Code of 1910 provides that “Accord and satisfaction is where, the parties, by a subsequent agreement, have satisfied the former one, and the latter agreement has been executed. The execution of a new agreement may itself amount to a satisfaction, where it is so expressly agreed by the parties; and without such' agreement, if the new promise is founded on a new consideration, the taking of it is a satisfaction of the former contract.” The agreement between the plaintiff and the defendant was purely executory on both sides. The offer by
If the plaintiff’s failure to accept performance by the defendant when tendered amounted to a breach of the contract, the defendant’s remedy would not be a plea in accord and satisfaction. He could have no more than a right of action for a breach of this contract. It is not necessary to decide this question here, as the defendant sets up no such breach by way of set-off or counterclaim to the note sued on, and the evidence is insufficient to authorize a finding that the defendant has been damaged by any such breach.
The exact question here presented has been decided by the Supreme Judicial Court of Maine. See White v. Gray, 68 Me. 579. The facts of that case were, as stated by Walton, J., in delivering the opinion of the court, as follows: “Plaintiff held a note against defendants for $800. Defendants were insolvent and were endeavoring to compound with their creditors. In consideration of which, the plaintiff agreed that, if their efforts were successful, he would take in payment of his note a lot of land and new notes for $500, payable, one half in one year, and one half in two years. Defendants’ efforts were successful, and they offered to settle with the plaintiff upon the terms stated in the agreement; but he refused,
The evidence demanded a verdict for the plaintiff in the full amount of the note sued on, and the court did not err in directing such a verdict.
Judgment affirmed.
Rehearing
ON MOTION FOR REHEARING.
The case of Steen v. Harris, 81 Ga. 681 (8 S. E. 206), relied upon by the plaintiff in error is clearly distinguishable. In that case the purchaser of a piano, who had given notes to the seller which the latter had transferred, proposed to the seller a rescission of the contract. As stated in the opinion in that case, the seller “immediately replied, accepting the proposition, and authorizing him [the purchaser] to hold the piano for them [the se'ler] and to sell it if he could. At the same time, they wrote to Baldwin & Co., [the transferee of the notes] saying they would take up the notes pay the discount, etc., which they did. The notes were taken up,
There is a distinction between a rescission of a contract of sale by a subsequent agreement between the parties and an offer to rescind by the purchaser as a matter of right upon the ground of fraud. The contract of rescission in the former case is governed by the law with reference to accord and satisfaction, and a mere executory agreement to rescind, where nothing is executed, is not, in the absence of an express agreement to that effect, an accord and satisfaction of the debt. Civil Code (1910), §§ 4304, 4305; Hoffman v. Franklin Motor Car Co., 32 Ga. App. 229 (6) (122 S. E. 896); Long v. Scanlan, 105 Ga. 424 (31 S. E. 436) ; Brunswick & Western R. Co. v. Clem, 80 Ga. 534 (7 S. E. 84).
Rehearing denied.