108 Ga. 211 | Ga. | 1899
The Mechanics National Bank brought suit in the city court of Atlanta, against O. A. Smith & Co., on an un
In their plea defendants tendered the policy of insurance, ihe guarantee of Jacob Haas, the notes in satisfaction of the •old ones, and payment of a year’s interest on the notes; and they contended that the note sued on has in law been paid and
Under the view we take of this case, we do not deem it material to enter into a consideration of the particular reason given by the judge for striking the defendants’ plea. If the demurrer should have been sustained on any ground therein taken, then the judgment of the court below should be affirmed', even conceding, for the sake of the argument, that the judge’s reasons for such ruling were erroneous. It is difficult to determine from the allegations of the defendants’ plea whether it was intended as a plea of accord and satisfaction, or whether it was intended to set up a composition agreement between creditors and a common debtor, whereby the former mutually agreed, on account of the financially embarrassed condition of the latter, to relinquish to him his original debts upon the execution by him of another agreement extending time for the payment of the debt, with some security. As ruled by this court in the case of Stewart v. Langston, 103 Ga. 290, such composition agreements between creditors and their common debtor are not without consideration, although they involve a release of the debtor from a portion of his obligation under the original contract; “and an offer by the debtor to-pay one of the creditors the amount due him in accordance with the agreement, after all the others have received their pro rata part in full settlement of their claims, constitutes a legal tender of the debt due such creditor.” But whether we treat the plea in this case as one intending to set up accord and satisfaction or as a composition agreement with creditors, it makes no difference for the purposes of this argument. To say the least of it, the defendants rely upon a subsequent agreement entered into between them and the plaintiff in lieu of their original undertaking; and they claim a sufficient consideration in law to support the contract
But apart from all this, which we think would render the plea defective as a composition agreement, it appears from the defendants’ answer that the agreement in question was the result of “the personal conference between these defendants’ agent and the correspondence which took place between said agent and said Mechanics National Bank, either directly or through persons in New York City representing these defendants and their Atlanta agent.” "When this correspondence took place, whether the correspondence was between the agent of the defendants and the plaintiff or was through some other person in New York City representing the defendants, and what that correspondence was, nowhere appears in the answer. As stated in ■the special ground of demurrer above quoted, this was simply a conclusion drawn from personal conference between the plaintiff and defendants’ agent, and also from correspondence between said agent and the plaintiff, either directly or through persons in New York City representing the defendants and their Atlanta agent. The plaintiff below certainly had a right to demand, as it did in its special demurrer, that the defendants .give the time and place of the contract and the names of the agents or persons who made the same, the exact terms thereof, and the written parts of so much as is alleged to have been by •correspondence. These particulars, and not simply the defendants’ conclusions from conferences and correspondence unrevealed, the plaintiff was entitled to know, or otherwise it could not with safety enter on the trial of the case upon its merits, not being sufficiently informed of the exact terms of the contract upon which defendants were relying to defeat the action. No amendment having been offered to meet so patent a defect, we will not reverse the judgment of the court in striking the plea and in entering up judgment in favor of the plaintiff against the defendants upon the note sued on.
Judgment affirm-ed.