33 S.E.2d 5 | Ga. | 1945
Lead Opinion
1. In the absence of an independent agreement by a creditor that the acceptance of an amount less than the indebtedness will be taken, or is taken, in full satisfaction thereof, the mere acceptance of a check for a less sum than the amount of an unliquidated debt, remitted by the debtor with notice that it is in full satisfaction of the debt, will not amount to an accord and satisfaction unless there existed previously to the tender a bona fide dispute by the debtor as to the correctness of the amount of the debt.
2. Under the evidence, the jury was authorized to find that the debtor did not act in good faith in deducting from the amount of an invoice, admitted *871 by the debtor to be correct, a sum claimed as commission, and in remitting a sum less than the amount of the invoice, accompanied by a letter stating that it was in satisfaction of the account.
Unpaid June invoice ............................. $2709.53 Deduction 2% cash discount ............. $ 54.19 Less amount retained as commission on sale of Miralumes for installation in Marietta Aircraft Assembly Plant (at 5 cts. per fixture) .................... $2000.00 Total deductions ................................ $2054.19 -------- Net amount paid ................................. $ 655.34."
By an amendment the defendant sought to recover from the plaintiff $234.53, representing an amount due it for additional credits in excess of debits since the June transactions.
The evidence showed the following facts as material to a consideration of the accord and satisfaction pleaded by the defendant: The wholesaler was, among others, a wholesaler of electrical equipment in Atlanta, Georgia, much of which was purchased from the manufacturer, though it had no exclusive sales rights in the territory which it served in and about Atlanta. Sometimes when bids were invited by others the wholesaler would prepare a bid at prices which would permit the manufacturer to allow the wholesaler certain discounts in case orders were obtained. These bids would be mailed to the manufacturer, who would itself make the bids to the intending purchaser, and when the order was obtained and the material supplied the wholesaler would be allowed the usual discounts. The construction of a bomber plant near Marietta. Georgia, under the sponsorship of the United States Government, required the use of certain lighting fixtures, such fixtures supplied by the manufacturer being known as Miralumes. For reasons satisfactory *872 to the Government, only manufacturers were to be allowed to make bids. The wholesaler nevertheless sought to induce the manufacturer to allow it a commission in case the manufacturer should be awarded the contract, contending that, inasmuch as the material was to be delivered in a territory which it ordinarily served, it should be protected. The manufacturer informed the wholesaler that no such commission could be allowed unless the Government would consent to its being included in the bid. Subsequently it was awarded a contract for furnishing the necessary Miralumes. This contract did not permit the inclusion of any commission for a wholesaler. Upon the delivery of the material to the bomber plant, the wholesaler renewed its insistence for a commission, but was informed that it could not be allowed under its contract with the Government. The wholesaler, admittedly owing the June account, stated through its president, Fred H. Dendy, to Hugh Saussy, the district sales manager of the manufacturer, on July 14, 1942, that its conviction was that a commission should be allowed, and that upon remitting for the June account the wholesaler would deduct the commission. Saussy then stated that he had had numerous conversations with the management of the manufacturer and knew that it would not be allowed for a number of reasons, the first being that the Government had limited bids to manufacturers, eliminating any commission for a wholesaler. Dendy reiterated his statement that a commission would nevertheless be deducted in the next remittance and the wholesaler would take its chance in court. Saussy informed him that a check in such proposed settlement would not be accepted, and that suit would follow if the account was not paid in full. On the following day, the wholesaler sent a check for its June account of $2709.53 less the deductions hereinbefore set out, the amount of the check being $655.34, accompanied by a letter showing the calculations and stating that, "Check is enclosed for $655.34 in payment of June account as follows," briefly referring to the divergent views as to a commission and regretting that "we could not see the matter from the same angle." This check was retained by the manufacturer and its proceeds used, and subsequently, on November 25, 1942, it brought suit against the wholesaler to recover the balance claimed to be due it on account.
The trial resulted in a verdict and judgment in favor of the *873 plaintiff for the full amount sued for. The defendant's motion for new trial was overruled, and the Court of Appeals reversed the judgment of the trial court, holding that an accord and satisfaction resulted from the acceptance of the check in the circumstances stated, and that the settlement was binding upon the plaintiff irrespective of the question whether the dispute by the debtor was bona fide. The case is here on certiorari excepting to the judgment of the Court of Appeals. (After stating the foregoing facts.) The following represents the opinion of the majority of this court, from which I dissent in part, and I do not concur in the judgment of reversal, for reasons shown in my dissenting opinion.
It has been many times ruled, where no question was involved as to an agreement by a creditor, that the acceptance by him of an amount less than the indebtedness, would be, or was actually, agreed to be taken in full satisfaction thereof, that the acceptance by a creditor of a sum less than the amount of an unliquidated debt, remitted by the debtor with notice that it is in full satisfaction of the debt, will not constitute an implied accord and satisfaction unless a dispute as to the correctness of the amount of the debt shall have existed previously to the tender. Copeland v. Montgomery,
Since, in the absence of an independent agreement by the creditor that he would accept a portion of his undisputed claim as in full, a bona fide dispute as to the amount due is necessary to afford a consideration for the extinguishment of the entire debt by a tender of a lesser sum, it follows that, if under the evidence the jury was authorized to find that the debtor wholesaler's deduction of commission, in remitting for the June account, was not in good faith, the judgment of the Court of Appeals in reversing the judgment of the trial court, based upon the verdict of the jury finding in favor of the plaintiff creditor, was erroneous. We think, from *876 an examination of the evidence, that the jury was authorized to find that the charge of five cents per fixture as commission against the manufacturer represented no genuine conviction based on anything said or done to reasonably lead the wholesaler to expect that its action would be approved; but that it was merely a petulant effort to force its will upon the manufacturer, despite the repeated declarations to it that under the terms imposed by the government no commission could be allowed any wholesaler. It is admitted that the wholesaler had no exclusive sales rights in the territory in which the material was delivered. It is clear that it rendered no services, and, by reason of the fact that it was not a manufacturer, was barred from making any bid directly or indirectly. The fact that on some occasions the manufacturer made bids to others in such a way as to permit the allowance of commissions or discounts to the wholesaler furnishes no precedent for expecting a commission under totally different circumstances. Good faith requires something more than what the jury was authorized to find was a mere arbitrary and capricious charge against the creditor, where every fact and circumstance impeached the idea that the debtor could reasonably expect a commission on a sale from which a commission was barred by terms imposed upon the seller. Since the verdict of the jury can be sustained under the law upon the theory that they did not regard the contentions of the debtor as bona fide made, and the amount of the account was otherwise conceded to be correct, the judgment of the Court of Appeals must be reversed.
Judgment reversed. All the Justices concur, except Duckworthand Atkinson, JJ., who dissent.
Dissenting Opinion
Let it be clearly understood that I recognize that the general rule of force in most jurisdictions is that, for the payment of an amount less than the claim to constitute an accord and satisfaction, it is essential that there exist a dispute as to the correctness of the claim, or that there be some other consideration flowing to the creditor for his waiver of the balance of his claim. In Chicago Ry. Co.v. Clark,
Precisely what are the essential ingredients of an accord and satisfaction is of vital importance to the entire public, and should if possible be made clear and unmistakable. For this reason, although being firmly convinced that the majority opinion erroneously states these essentials, I would nevertheless, for the sake of clarity and finality, concur in that opinion but for the fact that I am convinced that it does not clarify or settle these matters, and is not even controlling law and would not be so if all the Justices concurred, because it is in irreconcilable conflict with older decisions of this court which were concurred in by all the Justices. If so, it settles nothing, but simply adds to the doubt, confusion, and uncertainty already existing. By the Code, § 6-1611, it is specified in what manner a decision of the Supreme Court having the concurrence of all the Justices may be lawfully overruled or materially modified. Until this has been done in the manner there prescribed, such decisions have the force and effect of a statute. Act of 1858 (Ga. L. 1858, p. 74);Lucas v. Lucas,
Since the majority opinion reverses the Court of Appeals' ruling that the acceptance by the creditor of the debtor's check for an amount less than the creditor's claim, accompanied by a letter stating that the check was offered in full satisfaction, constituted an accord and satisfaction, and this without regard to whether or not there was a bona fide dispute regarding the claim, it necessarily rules that the facts relating to the acceptance of the conditional tender do not constitute an executed agreement, and that it is essential that a bona fide dispute exist in order that an accord and satisfaction may result. If by the controlling decisions of the Supreme Court I can demonstrate that a dispute, whether in bad faith or in good faith, is unnecessary, and that the facts touching the tender and acceptance constitute as a matter of law an agreement fully executed, the very foundation upon which the majority opinion must of necessity rest will thereby be destroyed and the opinion must, accordingly, fall. In decisions having the concurrence of all the Justices of this court, in Tarver v. Rankin,
The following decisions do not militate against what has been said. In Molyneaux v. Collier,
While the wisdom of the statute is exclusively the concern of the legislative branch of the government, and can in no case become the legitimate concern of the judicial branch, yet I submit that, when put to this test, the rule as I understand it to be will outweigh the rule as declared by the majority. If the acceptance of the tender, made on the condition that it settles the entire claim, constitutes an accord and satisfaction without regard to whether or not there exists a dispute, then the creditor is left absolutely free to exercise his own judgment with his eyes open as to the result of his action in accepting or rejecting such conditional tender. If he accepts, he knows that his claim is settled. If he is unwilling to thus settle it, he is free to reject it and thereby avoid an incumbrance, when he undertakes to collect his claim, by the record of such payment. It is the judgment of the parties, and they should not ask a court to reverse it and give them more than they gave themselves. Whereas under the rule in other jurisdictions and as applied by the majority here, if that same creditor knew that there had been no dispute he would be authorized to accept the conditional tender, and when he undertakes to collect the remainder of his claim he might be met with a plea of accord and satisfaction and the contention that there had been a dispute, and such a plea would be strongly supported by the evidence showing the express conditions and the acceptance by the creditor of the tender to which they were attached.
For reasons stated in the first part of this dissent, it is not even persuasive argument in support of the majority opinion to state that the Court of Appeals over a long period of time has so ruled and thus has led the general public to the common belief that the rule as so stated is the correct one in this State. If such reasons are of sufficient weight and persuasion as to sustain the adoption of that rule, then they are sufficient to justify this court in reviewing the decisions which conflict therewith in the manner prescribed by the law and in expressly overruling them, in order that the court might thus settle the law and fix the rule beyond uncertainty and doubt, for it is only thus that the law may be changed or made clear if that rule is to be adopted. For the reasons stated, which I firmly believe are sound and inescapable, I have no choice but to dissent. I am authorized by Mr. Justice Atkinson to state that he concurs in this dissent.
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