Western & Atlantic Railroad v. Atkins , 141 Ga. 743 ( 1914 )

Lumpkin, J.

(After stating the foregoing facts.)

1. In jurisdictions where the distinction between courts of law and courts of equity has been abolished, it is generally held that in an action for damages, where a release has been procured by fraud, relief may be had in the same proceeding, by incorporating in the petition a count to set aside the release. 6 Thompson on Corporations (2d ed.), § 7380. In this State the code declares, that, on the trial of any civil case, the superior courts shall give effect to all the rights of the parties, legal or equitable or both, and apply such remedy or give such relief as the nature of the case may allow or require. Civil Code (1910), §§ 5406, 5407. The plaintiff having sued for damages, and the defendant having pleaded a release, based upon a consideration, as an accord and satisfaction, it was competent for the plaintiff to amend his petition by alleging that the release was procured by fraud. Southern Railway Co. v. Nichols, 135 Ga. 11 (68 S. E. 789). The amendments made were not subject to the objection that they were not sufficient to authorize the avoidance of the release.

2. There is some conflict among the authorities as to whether •an injured person, who receives money or property as a consideration for a release of liability, is bound to tender it back, if he seeks to obtain relief against the release. 3 Elliott on Railroads (2d ed.), § 1377. In this State the decisions take position with that class •of authorities which holds that, in order to obtain a rescission of the •contract of release and recover upon the original cause of action, restoration or tender of the amount paid for the release is necessary. Harley v. Riverside Mills, 129 Ga. 214, 216 (58 S. E. 711), and citations.

3. The tender must generally be made to the releasee who made the payment, or to some person having authority to receive the tender for him. 38 Cyc. 156, 157; Civil Code (1910), § 1910. In this ease the settlement was' made with the injured person, prior to the bringing of the action, by an employee of the railroad company who testified that he was its “law agent.” The plaintiff’s attorney testified that on the day after the making of the release, when he'learned of it, he obtained from the plaintiff the fifty dollars which had been paid to him, and tendered it to the agent of the railroad company who had charge of the- office at Marietta, in Cobb county, and also of the small office in the same county near the scene of the injury. He testified that the agent had charge of the selling of tickets from Marietta, and of shipments to and from that place, having general supervision oyer it. It was also stated in the brief of evidence that during the trial counsel for the plaintiff tendered to counsel for the defendant the same amount, and that the latter refused to receive it, on the ground that he had no right to do so. The law agent who made the settlement with the plaintiff testified that the agent at Marietta was a local agent, having nothing to do with settling claims against the company, and that the witness could not say whether the same agent was in charge of the other small station mentioned. He further testified that the local attorney had nothing to do with settling damage claims against the company, hut that all such claims were passed upon by another •named attorney. This was substantially the evidence in the case on that subject. From this it will appear that the tender made before the suit was filed was made to an agent without authority to 'receive it. It was not made to the company, or to the agent who effected a settlement and paid the money (as in Southern Railway Co. v. Nichols, 135 Ga., supra), or to any one shown to have had authority. . The offer to refund, made pending the trial, was not equivalent to a tender before making an effort to rescind the release; and it appears to have been made to local counsel who had no authority to receive it.

As the release, so long as it stands, operates as an accord and satisfaction and furnishes a complete answer to the plaintiff’s action, .and as no tender was shown which would authorize the release to be set aside, if otherwise it could be done, it follows that the verdict, disregarding the release and finding a specified sum for the plaintiff, was contrary to law and the evidence. This ruling renders it unnecessary to discuss the other grounds of the motion for a new trial.

Judgment reversed.

All the Justices concur.