16 Ga. App. 83 | Ga. Ct. App. | 1915
Byan, an advertising solicitor in St. Louis, sued
1. 'In Bass Dry Goods Co. v. Roberts Coal Co., 4 Ga. App. 520 (61 S. E. 1134), this court held that, “where the aggregate amount of an account is in dispute, but the debtor concedes a liability for a part thereof, and tenders that sum in payment, on the condition that it shall be in full settlement, the creditor, by retaining and using the money, check, or other thing of value so tendered, extinguishes the whole account, notwithstanding he protests, at the time, that the remainder of his claim is still due and owing.” In that case Judge Powell, after quoting from Chicago Railway Co. v. Clarke, 178 U. S. 353 (44 L. ed. 1099, 30 Sup. Ct. 924), said: “In such cases, if the debtor tenders the sum as to which he is willing to concede a liability, on condition that it is to be accepted in full settlement, the creditor must decline the tender and not retain and use the money, check, or other thing of value offered in full settlement.” He cited also, in support of that ruling, Redmond v. Atlanta & Birmingham R. Co., 129 Ga. 140 (58 S. E. 874); Walker v. O’Neill Mfg. Co., 128 Ga. 835 (58 S. E. 475); Walker v. Wadley, 124 Ga. 286 (52 S. E. 904); Jenkins v. National Building Association, 111 Ga. 732 (36 S. E. 945); Hamilton v. Stewart, 105 Ga. 300 (31 S. E. 184); s. c. 108 Ga. 472 (34 S. E. 123). In Jenkins v. National Building Association, supra, it was held: “When a debtor,pays to a collecting agent a given sum of money upon the express condition that the same is to be accepted by the principal of the latter in full settlement of all demands against the debtor, it is the duty of the creditor, within a reasonable time after being informed of the condition on which the payment was made, to notify the debtor whether or not his offer of settlement is accepted, and if not, to return to him the money received.” Justice Cobb in that ease said: “In Hamilton v. Stewart [supra] it- was held that where a debtor remitted to a creditor
The decision in Stewart v. Stephens, 7 Ga. App. 453 (67 S. E. 199), relied upon in the brief of counsel for the plaintiff in error,
“It, is elementary law that a debtor has the right to attach to a tender such lawful condition as he pleases. And, therefore, where a sum of money is tendered in satisfaction of the claim, and the tender is accompanied with such acts and declarations as amount to a condition that if the money is accepted it is accepted in satisfaction, and such that the party to whom it is offered is bound to understand therefrom that if he takes it he takes it subject to such condition, an acceptance of the money offered constitutes an accord and satisfaction, in the absence of fraud, imposition, or mistake. And this is so wholly irrespective of the grounds upon which defendant declines to pay, and proposes to deny his liability for, the balance. The acceptance is an assent de facto, and the creditor is bound by it. Nor is it necessary that there be express words of assent to the proposition. On the contrary the rule applies with full force and effect, although the creditor protests at the time that the amount paid is not all that is due, or that he does not accept it in full satisfaction of his claim. Where the tender or offer is thus made, the party to whom it is made has no alternative but to refuse it or accept it upon such condition. If he accepts it, he accepts the condition also, notwithstanding any protest he may make to the contrary.” “When a claim is disputed or unliquidated, and the tender of a draft or check in settlement thereof is of such character as to give the creditor notice that it must be accepted in full satisfaction of the claim or not at all, the retention and use thereof, by the creditor, constitutes an accord and satisfaction. And it is immaterial that the creditor does not return a receipt in full, or that he sends receipt ‘on account,’ or protests that he does not accept the tender in full satisfaction of the claim. If he is not willing to accept the check in full payment, it is his duty to return it without using it.” The above quotations are from 1 Corpus Juris, 561, 562, 563, which cites, in support of what is there said, numerous authorities from practically all the States, including many from Georgia.
2. There is considerable uncertainty in the text-books and in the decisions of the courts as to when a claim is “liquidated” or "unliquidated.” “The word ‘liquidated,’ in the sense of the rule that payment of a lesser sum is a discharge as to the remainder where the amount in dispute is unliquidated, but that it is not a discharge when it is liquidated, means that the amount due has been ascertained and agreed on by the parties, or fixed by operation of law. The rule does not . apply where there is a bona fide dispute as to the amount actually due.” Treat v. Price, 47 Neb. 875, 883 (66 N. W. 834, 836). "A demand is not liquidated, even if it appears that something is due, unless it appears how
3. Whether there was a bona fide dispute between the parties is ordinarily a question for the jury. In Carlton v. Western & Atlantic R. Co., 81 Ga. 531 (7 S. E. 623), the Supreme Court held, that “It should have been left for the jury to determine whether the wages as well as the damages were in dispute, and whether the settlement covered all.” See also Beaver v. Porter, 129 Iowa, 41 (105 N. W. 346); Greenlee v. Mosnat, supra; Laroe v. Sugar Loaf Dairy Co., 180 N. Y. 367 (73 N. E. 61); Cornell v. Taylor, 137 App. Div. 496 (122 N. Y. Supp. 157); McCormick v. Shea, 47 Misc. 613 (94 N. Y. Supp. 485). In the latter case it was held, that, “Where the question as to whether there was an accord and satisfaction depends on whether or not the claim was liquidated, and there is some evidence of dispute and difference as to the respective obligations of the parties, it should be submitted to the jury, and the determination of the question by the court is error.”
The learned trial judge in this case, sitting as a jury, determined this question in favor of the defendant, and, the evidence being sufficient to support the verdict, his judgment overruling the motion for a new trial is Affirmed.