38 Ga. App. 76 | Ga. Ct. App. | 1928
Seibert & Robinson brought this action against Harold A. Richardson to recover a balance alleged to be due under a contract for the restoration and repair of a dwelling house damaged by fire. The entire consideration of the contract, including certain extras agreed upon, was $12,396.22. In rendering a statement of the account, in which credit was given for a part payment of $5344.70, Seibert & Robinson made an error of $1000 against themselves, thus showing the balance claimed as due to be $6051.52 in
The essential question presented in this case, of course, is whether there was an accord and satisfaction between these parties, and whether the release is to be regarded as conclusive evidence of settlement for a sum less than claimed.
The question of fact whether there was an accord and satisfaction in this case was one which the jury primarily was called upon to determine. The circumstance' of Richardson’s silence, at a time and in a situation when in good faith he was bound to speak of the error in the statement then before the parties as the basis of the proposed settlement, was alone sufficient to warrant the finding of the jury that there was no accord and satisfaction. In view of the testimony, which the jury was entitled to accept, the release might well be regarded as a mere nullity in the hands of Richardson, for the reason that it owed its existence to the inadvertence upon the part of the creditors, Seibert & Robinson, the deceit upon the part of Richardson, and, according to the testimony of Robin
Nor is this court inclined to share the view of counsel for the plaintiff in error with reference to the court’s charge to the jury in this ease. The charge seems to embrace all the essential phases of the controversy upon which it was the duty of the judge to instruct the jury, and no prejudicial error appears in the interpretation of the legal principles involved.
Judgment affirmed.