47 S.E.2d 772 | Ga. Ct. App. | 1948
The petition stated a cause of action based on a valid contract, and the court erred in dismissing the case on a motion in the nature of a general demurrer.
The plaintiff alleged that the said contract was entered into by the parties as a compromise of a bona fide controversy; that demand for payment had been made upon and refused by the defendant, and that the plaintiff had stood ready at all times since the making of the contract to release the defendant from all claims held by the plaintiff upon the payment of the amount stated in the contract.
The trial court sustained an oral motion to dismiss, in the nature of a general demurrer, the court being of the opinion that the contract constituted only an offer by the plaintiff to release the defendant from certain claims upon the payment of a sum of money before a certain date; and it was apparent that the defendant had merely failed to accept the offer, or avail herself of a mere option. This view adopted by the trial court seems to be the principal contention of the defendant.
"A contract is an agreement between two or more parties for the doing or not doing of some specified thing." Code, § 20-101. "To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent *72
of the parties to the terms of the contract, and a subject-matter upon which it can operate." § 20-107. That the instrument here under consideration has these basic requisites of a contract is easily demonstrable. It is an agreement between the parties whose signatures are affixed thereto, and whose relationship to each other is clearly stated, for the doing by each of some specified thing. Each promises to do a certain thing, Smith to pay a sum of money and Russell to release his claims. Whether the parties are able to contract is a question not presented by the demurrer, and nothing to the contrary appearing, they will be presumed to be so able. "A promise of another is a good consideration for a promise." Code, § 20-304; Benton v. Roberts,
"The cardinal rule of construction is to ascertain the intention of the parties. If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction." Code, § 20-702. "Courts should guard with jealous care the rights of private contracts and give to them full effect when possible so to do." Mutual Life Ins. Co. v. Durden,
The contract was in the nature of an accord and satisfaction. It was alleged that it was entered into by the parties as a compromise of a bona fide controversy. As to contracts of this kind, "to accept in the future a stated performance in satisfaction of an existing contractual duty," one rule is: (c) If the debtor breaks such a contract the creditor has alternative rights. He can enforce either the original duty or the subsequent contract." Restatement of the Law of Contracts, Vol. 2, Sec. 417. See Williston on Contracts, Revised Edition, Vol. 6, Section 1848, Farmers State Bank v. Singletary,
We think that the court erred in sustaining the motion to dismiss, because the petition as amended set forth a cause of action.
Judgment reversed. Sutton, C. J., and Felton, J., concur.