60 Ga. App. 404 | Ga. Ct. App. | 1939
On January 1, 1923, E. K. Lumpkin leased to Jacobs’ Pharmacy Company certain described property on Peach-tree Street in Atlanta, Georgia, for a term of fifteen years beginning January 1, 1923, and ending December 31, 1937, at an annual rental for the first seven and one-half years, of $9500, and for the last seven and one-half years $10,000 per annum; said rental to be paid in equal monthly installments in advance on the first day of each month. The lease also provided that Jacobs’ Pharmacy Company should pay all city and State and county taxes as they matured. The plaintiff in this action, Mrs. Walbridge, was the successor to the rights of E. K. Lumpkin. It appears from the evidence that in January, 1935, Jacobs’ Pharmacy Company had been defaulting to the extent of $33.33 per month since 1933, and was in arrears as to- the taxes for 1933 and 1934. An offer was made
This suit was brought to recover the unpaid $33.33 a month beginning March 1, 1935, and ending December 31, 1937. The defendant pleaded a full accord and satisfaction. Under the facts as above stated the trial judge directed a verdict in favor of- the defendant and the plaintiff excepted.
Code, § 30-1304 provides: “An agreement by a creditor to receive less than the amount of his debt can not be pleaded as an accord and satisfaction, unless it be actually executed by the payment of the money, or the giving of additional security, or the substitution of another debtor, or some other new consideration.” This section is codified in part at least from Evans v. Pollock, 3 Dudley (Ga. Dec.) 33, as follows, “A creditor is not bound by a contract to receive from his debtor a smaller sum of money for his discharge from a greater, unless the money is actually paid and
We do not think the evidence was sufficient to show this fact. The plaintiff made it very clear that although, before March, 1935, the defendant had been paying her only $800 per month she was not accepting this sum as settlement in full of her claim under the contract. The contract called for $833.33 per month, and she was standing on the contract. When the suggestion was made to her that she agree that for the future she take $800 a month in full satisfaction of the rent, she replied that she would accept this only conditionally, and she then named the conditions, to wit: payment of past-due taxes which the lessee was already bound to pay, and made the date, April 1, a time for such payment, as one of the conditions. Time was certainly of the essence of her offer in that case. The lessee failed to comply with this offer, and sought a further proposition that it be allowed until during the month of August to comply with the condition as to the payment of the taxes. This was made to the plaintiff and she agreed to give this further time for the defendant to comply with the terms of her offer of reduction, and wrote again that this reduction of $33 a month in rent from April 1st would be granted “contingent on the fulfillment of the above agreement, but if the county taxes are not paid, by Jacobs during August the $33 is to stand as accrued from April 1st.” Again it seems to us that time was of the essence of this agreement to take a lesser amount.
It can not be contended, under the agreement set forth, that .if the taxes had not been paid at all that there was any consent or agreement to take less than the full amount due for the rent; neither can it be contended that a failure to comply with the payment of these taxes within the time limit fixed by the agreement was not a breach of the contract or agreement to take less than the whole. The agreed statement of facts in this case showed that the plaintiff had theretofore made agreements to reduce the rent upon compliance by the defendant with the exact terms of the lease. The defendant failed to comply with these offers of reduction and they were withdrawn. April 1 was then set as a date for the payment of the taxes, and it was stated that a strict compliance would be insisted on as to the time. She stated, “I hope I have made
What was said by this court in Mechanics Loan & Savings Co. v. Fowler, 57 Ga. App. 277 (195 S. E. 222), is not in conflict with this holding. In that case the accord and satisfaction was an executory agreement based on a consideration. It was held that the continued acceptance of instalment payments after due dates, in the absence of a notice to the contrary, is, on such a contract, a waiver of the right to treat the agreement as void. In the present case there was no executed agreement. The full amount was demanded, although the plaintiff had agreed, her agreement not having been complied with, that a lesser amount would be accepted in lieu thereof expressly conditioned on the payment of the taxes by a certain date. The fact that the lessee continued to pay $800 instead of $833.33 each month and the lessor continued to receive this amount can not be treated as a waiver of the express and par
Under the evidence in this ease we think a verdict was demanded for the plaintiff. The court erred in directing a verdict for the defendant.
Judgment reversed.