*1 false). (all demands of which was many to its attention Parks, distinguish White seeks majority opinion The like is more Southeast by saying supra, (184 SE2d Woodruff, Bankcard v. with each other. equated cannot be These two cases Not so. the control- does not comment majority opinion The Pritchett, 108 Ga. Tel. Co. v. Union ling case Western decision. judge six 411, 415, which is full-bench supra, has not Conway that Mrs. argues majority opinion that is erroneous. She has damages, but any special pleaded with; her eco- was interfered that her pleaded employment affected; adversely her employer nomic position with her relationship employer and personal her business affected; that her men- adversely and fellow employees damaged; that she lost the tal and health were physical had with formerly character she of unblemished prestige her that the letter wounded co-employees; her employer that the letter was placed her feelings; happiness; disturbed she testified she had Further, in her depositions in her file. not required She was employment. received demotion to plead special in order expenses to plead out-of-pocket damage. affirm trial court in
I, therefore, dissent and would for summary judgment. the motion overruling Deen Judges Pannell and I am authorized state join this dissent. AMERICAN OIL COMPANY.
47019. STUDSTILL v. *2 9, 1972— 1972— Submitted March Decided June Rehearing July 19, 1972 denied *3 Cravey, C. for appellant. Rembert Smith, Ed Harrington, appellee. for Smith Will (Code Checks are demand Ann. Judge. payable Deen, (2) (b) a reasonable time after issu- 109A-3—104 within § certified, is a and, days to be considered ance when (Code for in Ann present payment time which reasonable (2) (a)). . not payment "Bank checks. . are 109A-3—503 § " by agreement 20-1004. 'An paid.” until themselves Code § his debt can receive than the amount of creditor to less it be satisfaction, unless as an accord pleaded not be giv- of the or the money, by executed actually payment of another or the substitution security, of additional ing debtor, other consideration’, and, or some new . . in . agreement absence of an contrary, to the check bank thus tendered as in full is not it payment such until is itself (Colfax Gin paid” Buckeye Co., Cotton Oil (2) 697)) or unless the is check itself ac cepted as payment. Wilson, Interstate &c. Co. Life (2) App. 171
itWhile is clear that an satisfaction, executed accord and or accepting money cashing check in given full settle- ment for than demand, less the amount of the inis bar (Rivers an action to collect any Corp., excess Cole 196)) and while retaining check an un- length of may reasonable time lead to the conclusion legal (cases has fact been as accepted payment below) which nevertheless, effect are discussed "an agree- ment by a creditor to receive less than amount of his pleaded debt cannot be accord satisfaction, as an unless actually be executed by money or ... some other new consideration.” Code (Emphasis 20-1204. sup- plied.)
It if it follows is intended to accept a check as pay- ment demand, that check should be presented promptly for payment, usually Where, within a 30-day period. absence of suggesting circumstances a contrary state of facts, cashed, although not is for a kept period greatly time, excess of this such retention may itself (accord) cause the rely debtor to on the theory that offer his (satisfaction), has been accepted in which the creditor case no longer right has of action for That, the excess. how- ever, is not the situation It was perfectly here. clear to both parties long as six after the months initial action of the company in forwarding the check that the had not and would not it if it was to *4 accept be construed as an ac- cord and satisfaction. by This is of shown the letter October 12 which client, commences: "I assume that your must Mr. Studstill, Jr., Jack has not to offer, chosen our accept as Mr. Studstill has not our negotiated By draft.” that time the stale, check was a already since bank is under no obli- than a certified a to a other pay gation customer after months its more than six check, which is presented it in plaintiff’s was the 109A-4—404. Nor date. Code Ann. entered. summary the order was possession when agree- has no that there been recognize Where both parties to a time when there is very at close ment in existence or even if the to honor the instrument obligation no drawee no obviously meeting there has been be presented, should "It only settlement. is the compromise of the minds on due, and the amount one there a as to dispute when is that it reciting a and the other check accepts tenders party the is subse- demand, in full check is of in payment and retention of check reception that the quently paid, v. Moul- Meeks can set accord and satisfaction.” up be as 445). (Emphasis supplied.) ton, 46 Ga. SE gave for that he his trespass, "A one by defense sued damages the for is of claim promissory notes settlement recovering plaintiff not the from prevent sufficient that action, it is the the cause of unless shown original agree- an express or that there was paid notes have been that the should be received parties
727 check; the check is accepted settlement an accord if full and satisfaction will result. Here the evidence is clear that $10,000 never at time any accepting considered in full damage. Gay settlement his individual v. Ameri- (153 612) Co., can Oil 115 Ga. 18 SE2d is also a App. case an involving lease attempted forfeiture where landlord check, retained rent and follows Pan-American Ins. Life Co. v. supra, merely holding retention of the to a check amounted waiver of the In Holton forfeiture. (163 346) Dodge, Baird, Inc. v. 118 Ga. 316 App. SE2d plaintiff did in fact execute a accept written settlement and thereof, draft and the case holds that after these acts cannot she rescind the settlement in the absence of fraud her. practiced upon Baggett Chavous, v. Ga. 107 (131 109) 642 App. SE2d holds that retention check for an unreasonable time without and cashing without indicat- ing to accept it as an and accord will refusal satisfaction constitute In acceptance. Gibson v. Filter Queen Co., 109 (136 922) Ga. App. 650 SE2d an accord and satisfaction was accomplished where an agreement between the and vendee vendor to rescind the contract was executed the vendee returning the property to vendor.
Mere retention of a stale where the de evidence mands a finding that there was knowledge on the part the debtor at the time the creditor refused accept in full satisfaction of the unliquidated liability, and where the check was, was never cashed and at the time of the summary order, in judgment the hands of maker, will not support a judgment accord and Anything satisfaction. Fidelity to the contrary M., Ltd., Cas. Co. v. C. E. B. (156 116 Ga. 92 App. 467), SE2d must yield to the statute law and precedents older hereinabove cited.
The trial in granting summary court erred judgment. Judgment Stolz, reversed. Pannell JJ., and Hall, concur. J., and Evans, J., P. concur in only. Bell, C. J., Eberhardt, J., Quillian P. Clark, JJ., and dissent.
Hall, Presiding concurring Judge, dubitante. As to the confusion of the law on 1 Georgia point this see CJS 728 55; footnote 13 Satisfaction, and Accord §34 Satisfaction, 321-322, 1 AmJur2d Accord 738;
ALR2d
(31
184);
Stewart, 105
& Co.
300
SE
Hamilton
Ga.
§23;
Jen
123);
Ga.
Hamilton & Co.
Assn.,
When receiving pro- of the it to duty party claim is puted it, and if he negotiate or return promptness ceed Hamilton does an accord and satisfaction results. neither Stewart, Plowden 123); 472, 476 108 Ga. (1) (190 Hall, Pan American 37); 321 App. Life 326); Gay v. Ins. 57 294 App. Ga. 612); Fi- Co., 115 18, American Oil SE2d Ga. M., Ltd., v. C. delity & Cas. Co. E. B. Baird, Dodge, Holton Inc. v. Ga. 467);
SE2d Mr. the draft There no doubt that was tendered can be damage. and his claim for injury Studstill in settlement of indi- enclosing it so notation and letter Both draft 25, August 1970, cate. Moreover from until filed suit was 22, 1971, Aetna so April repeatedly informed Mr. Studstill or his attorney, requested negotiated it be or re- turned.
The rule is expressed Fidelity & Cas. v.Co. C. E. B. M., Ltd., 116 Ga. App. supra, which very soundly rests the decision of the Supreme Court Hamilton & Co. supra. retention the draft was, law, here as for an time, matter unreasonable an accord and satisfaction had occurred before the suit was filed.
A contention that
the draft had
stale
become
before the
suit was
and that
filed
thus the bank would have been au-
(2) (a)
thorized under Code Ann. 109A-3—503
to dishonor
it,
and return
does not
require
different
It
conclusion.
should have been
or
used
returned before
oc-
staleness
curred. Who
brought about
If
staleness
the demand?
draft
had become stale because the
had
issuer
stopped
it,
very
we should have a
different situation.
itBut
does not lie in the mouth of
payee
to assert that
against
defense
the plea when that situation results
from his retention of the draft in the face of requests from
*7
the issuer that he
to
proceed
negotiate it or return it. Cf.
(74
770).
Bolton,
Sims v.
receives
though the claimant
the
And this is so even
ment of
claim.
.
not,
draft,
and
the check or
to,
no effort
does
cash
makes
other
Pan-
party.”
it back to the
subsequently tenders
and
294,
App.
supra.
Co. v.
57 Ga.
Ins.
American Life
Birmingham Air-
Atlanta &
Redmond & Co. v.
See also
(58
874);
Mut.
v. National
R., 129
133
SE
Jenkins
Line
Ga.
(36
945); Thompson v.
Assn.,
SE Accord: Rogers, 42); Wilcox, Ives & Co. v. 219); Progressive Co., Pub. Ryan Retailer Ga. Co., 116 834); v. Continental Gin Hornbuckle *8 E. 829); Fidelity Cas. Co. v. C. B. Ltd., M., supra. majority simply ignores the condition which the check or draft was delivered, an flowing acceptance and the result from for of length retention of instrument an unreasonable time, the condition never having been withdrawn. for summary judgment properly
Defendant’s motion sustained.
I am authorized to state that Bell and Judge Chief Quillian Clark Judges join this dissent.
47209. BAILEY v. TODD. Judge. This is in a minor appeal behalf of plaintiff Clark, from for pedestrian adverse verdict the motorist 3, 1969, whose car On injured child. February of occurrence, date years in- old. Her juries were received when she was an Atlanta crossing street from descending after an Atlanta System Transit bus. The case for three was tried days jury before from evidence sides which both resulted in a verdict defendant. There are of 29 enumerations error of which relate charge the court. These are herein considered they order were presented excepting this court together those lumps which appropriately should be dealt with unit order to limit reason- ably the length of this opinion.
1. The first four enumerations deal with con- evidentiary
flicts. Plaintiff made a motion for a directed verdict sup-
plemented
subsequently
by
motion for
notwithstanding
verdict
along with
motion for new
trial containing
general
grounds and a special enu-
meration of error alleging
"there was
any competent
or probative evidence whatever
the verdict of
supporting
jury
June
1971, for the defendant
in this
case.” We have read the entire
transcript
trial
and find
pages
the trial court was not in error in ruling
questions
this case presented
of fact for
determination
ment
notes
between
damages.”
as
of his claim
by
payment
the plaintiff
Lee,
SE
Here there is
Brantley