Swofford v. Glaze , 206 Ga. 574 ( 1950 )

206 Ga. 574 (1950) 57 S.E.2d 823

SWOFFORD
v.
GLAZE.

16891.

Supreme Court of Georgia.

February 15, 1950. Rehearing Denied March 15, 1950.

Frank Lawson and Wheeler, Robinson & Thurmond, for plaintiff.

Sloan & Telford and Sidney O. Smith Jr., for defendant.

HEAD, Justice.

1. "Ordinarily the plaintiff, in his petition, need not anticipate or negative a possible defense. Where, however, such defense is anticipated, it must be effectually avoided, or the complaint is bad." James v. Maddox, 153 Ga. 208 (111 S.E. 731); Smith v. Scarborough, 182 Ga. 157 (185 S.E. 105). Where the pleaded facts, if proven, would be insufficient as a matter of law to negative the defense of accord and satisfaction, the petition would be subject to an appropriate demurrer. In the absence of any attack as to the sufficiency of the pleaded facts to negative the defense of accord and satisfaction, the plaintiff was entitled to submit to the jury the evidence relied upon by her to negative such defense, along with the evidence relied upon by her to sustain her action for damages. It was, therefore, error for the trial court to grant the motion of the defendant for a separate trial on the plea of accord and satisfaction.

2. Under the above ruling, the further proceedings were nugatory, and no ruling is required on questions 2 and 3, which counsel agree are before the court for decision.

Judgment reversed. All the Justices concur.