37 Ga. App. 412 | Ga. Ct. App. | 1927
C. C. Belcher brought suit against W. H. Robinson, alleging that about June 10, 1923, he entered into an oral contract with the defendant, whereby he agreed to sell to the defendant his entire crop of collard seed for that year, and to accept, upon delivery of the seed, payment at 13 cents per pound, and to accept the verbal guarantee of the defendant to pay him, in consideration of the delivery of such seed, such sum, in addition to the payment provided for on delivery of the seed, as would make the total payment equal the greatest price per pound received by members of the collard seed association at Cairo for seed grown that year; that the defendant contracted'and agreed to pay the plaintiff 13 cents per pound for all of his collard seed grown during that year, and to offer to pay him such additional sum as would bring the entire purchase-price up to the greatest price received by members of the collard seed association; that pursuant to the contract he delivered to the defendant 5173 pounds of collard seed, and the defendant’s agent to whom the seed were delivered furnished him for each wagon-load of seed a ticket as follows:
“Cairo, Georgia, June 19, 1923. Payable only at office W. H. Robinson.
“Mr. C. C. Belcher. Commodity—Collard Seed Wagon-load gross wt. Tare wt.
“Net wt. 2,359—price 13$. C. B. W. Warehouseman.”
Plaintiff received three such tickets, the aggregate weights of the loads therein receipted for being 5173 pounds. When the deliveries were completed the defendant took up the tickets issued by the warehouseman, and paid the plaintiff for all of the seed at 13 cents per pound, issuing to him a writing as follows:
“Cairo, Ga. June 30, 1923. Bought of Mr. C. C. Belcher “5173 lbs. collard seeds at 13$, $672.49. Credit account, 672.49.
“W. II. Robinson per R. L. F.”
The defendant interposed a general and special demurrer, contending thereby that the petition failed to set forth a cause of action and that the allegations showed a valid written contract between the parties, which had been fully performed, and that the suit seeks to vary the terms of the written contract. By the special demurrer it is contended that the allegations setting out the contract, and those of paragraph six, above quoted, setting out the plaintiff’s construction of the contract and. the promise upon which the suit is based, are “vague, indefinite, and contradictory, in that it is alleged that the suit is based on one or more contracts, and does not’ in a positive manner allege the cause of action sued on, in that it alleges that the cause of action consists of one contract or two contracts.” To an order overruling the demurrers exception was taken.
Counsel for defendant in error, in his able and ingenious brief and argument, sets forth the contention that since there can be several independent clauses of a contract, satisfaction of one will in no wise alter or satisfy the others. He cites, in this connection, National Duck Mills v. Catlin, 10 Ga. App. 240 (73 S. E. 418), and Carlton v. W. & A. R. Co., 81 Ga. 531 (7 S. E. 623). In the Garlion case ,the Supreme Court held that a person was not bound by his relinquishment of damages based upon a receipt for wages to which he was unquestionably entitled, there being, in such a case, no consideration for the relinquishment. The contention, as applied to the instant case, is that the plaintiff should not be debarred from collecting the alleged balance of the purchase
It is contended that before the writings can operate to limit the amount which the seller was entitled to recover under the alleged prior oral contract, they must amount to an accord and satisfaction of the previous oral agreement, based upon a valid consideration. It is true that in order to enforce an executory contract set up by way of accord and satisfaction for the purpose of altering a previous valid agreement,' it is necessary that the accord and satisfaction, like all other contracts, be supported by a consideration. Riley v. London Guaranty &c. Co., 27 Ga. App. 686 (109 S. E. 676). However, where the subsequent written agreement does not purport to operate as an accord and satisfaction, and makes no reference to any prior oral stipulation, but where the writings constitute, in and of themselves, a full and complete contract, so as to supersede or extinguish any previous contrary oral understanding, it is begging the question to attack the validity of the written instrument because inconsistent with the terms of a previous oral agreement, thus rendered invalid and incapable of proof. The whole difficulty with respect to enforcing the alleged prior contradictory oral contract is that when it is shown to run counter to the terms of a complete subsequent written contract, the oral agreement becomes of no force and effect whatever, and so remains unless and until the written agreement is otherwise successfully attacked. See generally Reid v. Diamond, 85 Federal 193 (2); 5 Wigmore, Evidence, § 2430 (3). It does not appear that the ruling made by this court in Goldsmith v. Marcus, 7 Ga. App. 849 (68 S. E. 462), has application here, since in the present ease the petition shows that the plaintiff accepted the writings and handled them by having them cashed, and under these circumstances, in the absence of any allegation to the contrary, it should be presumed, construing the petition most strongly against him, that the plaintiff actually knew of their contents. No question is presented, and no opinion is expressed or intima
Judgment reversed.