129 Ga. 133 | Ga. | 1907
(After stating the facts.) It appears from the petition in this case that the plaintiffs accepted a certain sum tendered by the other party as the full amount due under the contract, though protesting that it was an improper amount and less than they were entitled to, and released the defendant, in consideration of such payment, from all further liability under the contract sired on. And it is insisted by defendant’s counsel that this constituted an accord and satisfaction, and that under the Civil Code, §3735, the plaintiffs are concluded, the agreement-having been actually executed by the payment of the money. Defendant insists that the payment and acceptance of the money, under the facts set forth in the petition, under the provisions of the code section just cited, is binding upon the plaintiffs as an accord and satisfaction, ■ whether the demand of the latter was liquidated or unliquidated. Dnder the view that we take of the questions made by the record, it is not necessary to decide whether
A brief reference to some of the items of the account upon, which the plaintiffs’ demand in this suit is based will produce th& conviction at once that it was unliquidated. One of the items alleged to be due to petitioners was for removing a certain number of cubic yards of dirt, which “petitioners show that they were-compelled to handle in a manner not contemplated by the contract, and not provided for by the contract, and that said work was. reasonably worth the sum at which it has been charged up” in the.petition. Another large item was for handling “wet excavation,”' and “petitioners show that no contract price was fixed for hand
The claim that this release is not binding, because the sum named in the final estimate was fraudulently fixed, can not avail the plaintiffs. As plaintiffs themselves did the work and were on the ground, they were in possession of all data necessary to determine whether the engineer’s estimate was correct or incorrect, and if incorrect, to what extent, and whether his conduct was fair or unfair. The petition shows not only opportunity of knowledge and notice, but actual knowledge of the facts by which they could have made good their " present complaint that the final estimate was incorrect, unfair, and fraudulent. That being the case, they did not sign the receipt in ignorance of the fraud
But even if this were not the case, we think the contention of the defendant company is sound when it insists that the plaintiffs, having received the amount of money tendered by the defendant in settlement of this claim, and having executed a full release, can not set aside the same without having first, as a condition precedent to filing the suit, tendered back the money received.
The plaintiffs received the sum of $41,664.67; they received it on terms and conditions stated in the receipt signed by .them; and they ought not to be permitted to retain it and repudiate an executed agreement. The case as presented by the record makes applicable the language of Mr. Justice Cobb'in the case of Hamilton v. Stewart, 105 Ga. 300: “The retention of the amount forwarded, declared to be in full settlement of the claim held by the person to whom it is sent, coupled with a failure within a reasonable time to decline the proposition, will raise a conclusive presumption of an acceptance of the terms and conditions set forth in the proposal. While of course a party can not be bound by a settlement unless he assents to its terms, still this assent may
It follows from the foregoing that the court did not err in sustaining the general demurrer and dismissing the action.
Judgment affirmed on the main bill of exceptions. Gross-bill of exceptions dismissed.