44 Ga. App. 618 | Ga. Ct. App. | 1931
Lead Opinion
1. It is the general rule that where any part of a claim is in good faith disputed, a payment made and accepted in settlement of a bona fide dispute and in discharge of the whole indebtedness is binding accordingly; but this rule could not apply where a payment is not rendered or accepted as in discharge of the whole indebtedness, but is merely a partial payment intended to be credited upon the recognized indebtedness, even though at the time that such payment on the admitted indebtedness is made and accepted the defendant, as maker and acceptor of the draft sued on, accompanied such payment with a statement of account, setting forth two credits claimed by it growing out of the previous transaction, which, together with the amount then paid, left a balance due in the amount of the new acceptance with deferred maturity date then tendered. Such a partial payment admitted to be due was not expressly or impliedly coupled with a condition as to the allowance of the credits then claimed or the acceptance of the tendered bill of exchange maturing at a later date. Since it appears, without dispute, that the plaintiff promptly declined to accept the tendered bill of exchange representing the balance claimed by the defendant to be due and maturing at a deferred date, the court did not err in ruling against the defendant’s claim of accord and satisfaction.
2. This was a suit on an accepted bill of exchange. The defendant pleaded that the amount sued for was not due or owing, because of an alleged ” accord and satisfaction, and further set forth, by way of counterclaim, damages alleged to have accrued on account of the plaintiff’s- breach of an alleged contract for the purchase of certain cross-ties. The court directed a verdict in favor of the plaintiff for the amount of the acceptance, less certain admitted credits, and the defendant excepted. With reference to the counterclaim by the seller for damages on account of the alleged failure of the purchaser to take certain cross-ties, the question hinges upon whether or not there had been a valid agreement between the parties for thfi purchase thereof, and, if so, whether, under the undisputed evidence, there had been a breach by the purchaser on account of its failure to accept cross-ties as tendered in accordance with the terms of such agreement. The parties had originally entered into an oral agreement for the purchase of six to eight thousand cross-ties. Subsequently and before any cross-ties were shipped, an order, designated as “order No. 108,” for from twenty to twenty-five thousand cross-ties, of specified sizes at named prices, was written and signed by the purchaser and mailed to the seller. On receipt of this order the seller, by letter, called the purchaser’s attention to the fact that the previous oral agreement covered only six to eight thousand cross-ties, instead of twenty to twenty-five thousand. Subsequently, in a telephone conversation, the seller asked the purchaser what to do with the signed order, and the buyer replied “go ahead and keep it.” Thereafter the purchaser gave wrritten instructions for shipment of the ties, referring therein to “order No. 108.” It indisputably appears that more than ten thousand cross-ties were delivered, accepted, and paid for, and, according to the
3. Since the written agreement specifically provided that the ties sold should meet the specifications of the New York Central Lines, these specifications were properly admitted in evidence upon proof submitted that the writing offered contained “the present New York Central specifications.” Judgment reversed.
Rehearing
ON MOTION ROE EEHEABING.
By a motion for rehearing it is insisted by counsel for the plaintiff that the contract sued on by the defendant in its counterclaim amounted merely to an unaccepted offer to buy, and was, therefore, lacking in mutuality; that in considering cases of this kind the distinction between mutuality of ássent and mutuality of obligation must be kept clearly in mind; and that our courts are committed to the proposition' that á bilateral contract must contain mutuality of
Our courts are also committed to the doctrine, as set forth in the original decision in this case, that “whole or partial performance of a contract will satisfy the requisites both of mutuality and of the statute of frauds.” See the three cases cited supra. The case of Chickamauga Mfg. Co. v. Augusta, Grocery Co., 23 Ga,. App. 163 (98 S. E. 114), is not in conflict with the rulings made in the cases just cited. In that case the defendant had forwarded to the plaintiff an order for 250 gross of a described commodity, “to be used'as ordered within 12 mos. from date.” The plaintiff did not accept the order, either orally or in writing, and it was not alleged that the goods were ever manufactured in accordance with the terms of the order, or ever tendered or delivered by the plaintiff. After the order was entered the defendant ordered out 45 gross of the commodity, but without specifying that it was under the previous unaccepted order. It later notified the plaintiff that it would not accept the remaining 205 gross. There was no averment in the petition that the shipment was made under the terms of the order as given, and the court held that there had been no acceptance of the defendant’s offer to buy, made prior to its revocation, such as would bind the plaintiff, and there was, therefore, no binding contract between the parties.
In the instant case, according to the evidence, there had been a parol contract between the parties for the sale of six to eight thous- and cross-ties at specified prices. Thereafter the plaintiff sent to the defendant an order for twenty to twenty-five thousand cross-ties, the same being plaintiff’s order No. 108. Upon receipt of this order the defendant, by letter, called the plaintiff’s attention to the fact that the previous, oral agreement covered only six to eight thousand cross-ties, instead of twenty to twenty-five thousand. Subsequently the plaintiff told the defendant to “go ahead and keep” the order No. 108, and thereafter gave written instructions for the shipment of ties, specifically referring therein to the written order No. 108. There was no evidence that in any of the conversations between the parties, or in the exchange of letters, the defendant advised the plaintiff of any unwillingness to sell twenty to twenty-five thousand ties as ordered, and the testimony shows without dispute that more than the original maximum of eight
It is further contended by the motion for rehearing that the court properly directed a verdict as against the counterclaim because there was no evidence to indicate that the defendant seller of the cross-ties had complied with the provisions of the Civil Code (1910), § 4131 (2), relative to giving to the plaintiff buyer notice that the cross-ties contracted for, and which had been rejected, would be sold at the plaintiff’s risk. The decisions of the courts of this State are uniform to the effect that the notice required to be given under the code section cited, where the seller of goods which