Farmers State Bank v. Singletary , 22 Ga. App. 653 ( 1918 )

Wade, C.' J.

1. Where accord’ and’ satisfaction is pleaded in bar to a suit based on the’ original cause of action, it must appear that the accord has been fully executed; but where an agreement has. been reached between the parties as to the amount of indebtedness due by one to the other after a comparison anil adjustment of their respective claims, and a portion only of the resulting sum- of indebtedness agreed upon is paid by one party and the balance thereof still remains unpaid, the other party is not compelled to rescind or disregard the compromise agreement and sue on the original claim, but may at his election retain the amount received under the compromise agreement and maintain an action for the balance due thereunder.

(a) Under the allegations in the petition in this case, it was at least necessary that an agreement be reached as to the market value of the cotton at some particular date, out of which the demand of the plaintiff's arose.

2. The compromise or liquidation contract between the parties which furnishes the foundation for the action brought is not an unilateral contract.

3. Under the allegations in the petition it does not appear that any amount of money was loaned to the plaintiffs, and therefore there is no merit in the contention that the petition fails to disclose that the amount-loaned to the plaintiffs by the bank was not.in excess of that allowed by law.

4. The trial judge did not err in overruling the demurrer to the petition.

Judgment affirmed.

Jenkins and Luke, JJ., concur.

The demurrer is on. the grounds: (1) No cause of action is set out. (2) The petition does not set up that the defendant had enough capital and surplus to authorize the agreement to lend $17,-162.64, or that the loan was amply secured by good collateral. (3) The alleged contract is unilateral, no consideration being obtained by the bank for the'option claimed by the plaintiffs. (4) No facts alleged authorize, a claim that a compromise was effected between the parties litigant.

Cited by counsel for plaintiff in error: Civil Code (1910), §§ 4326-9; 1 Corpus Juris, 527, 530-4, 539-57, 567-8, 574-7; Troutman v. Lucas, 63 Ga. 466, 469; Blalock v. Jackson, 94 Ga. 469 (3); Patterson v. Ramspeck, 81 Ga. 808 (4); Taylor v. Thomas, 61 Ga. 472 (3); Kennedy v. Maddox, 15 Ga. App. 684; Stone Mountain Granite Corporation v. Patrick, 19 Ga. App. 269 (4); Brunswick R. Co. v. Clem, 80 Ga. 534; Long v. Scanlan, 105 Ca. 426; Fouche v. Morris, 112 Ga. 143, 144-5; Petty v. B. & W. Ry. Co., 109 Ga. 680; Lowry v. Sloan, 51 Ga. 633 (2), 636-7; Dannelly v. Cuthbert Oil Co., 131 Ga. 697-8; Long v. Lawson, 7 Ga. App. 460-1; Edwards Bottling Works v. Jarnagin, 11 Ga. App. 163; Bynum v. Knighton, 137 Ga. 251 (1); Dillard v. Dillard, 118 Ga. 97 (3); Nance v. Winship Machine Co., 94 Ga. 649 (3); Smith v. Mechanics Nat. Bank, 108 Ga. 211; Bowen v. Waxelbaum, 2 Ga. App. 522 (3-5), 524-5; City Electric Co. v. Floyd County, 115 Ga. 655; Belt v. Lazenby, 126 Ga. 767 (2, 3), 771-2, and cit.; Byrd Printing Co. v. Whitaker Paper Co., 135 Ga. 865 (2), 867-8; Dickerson v. Dickerson, 19 Ga. App. 269; Davis v. Morgan, 117 Ga. 504 (1), 505-7, and cit.; Reese v. Hood, 99 Ga. 132-3; American Mortgage Co. v. Rawlings, 127 Ga, 82; McLendon v. Wilson, 52 Ga. 41 (1); Stewart v. Stephens, 7 Ga. App. 453, 458-60; Graham v. Howell, 50 Ga. 203 (2); Rhodes v. Outcault Adv. Co., 135 Ga. 516, (1-2); Copeland v. Montgomery, 8 Ga. App. 633; Ryan v. Progressive Pub. Co., 16 Ga. App. 83, 86 et seq., and cit.; Phinizy v. Bush, 129 Ga. 479 (6), 491; Molyneaux v. Collier, 13 Ga. 407 (11-14), 420-4; s. c. 3 Ga. 112, 17 Ga. 46, 30 Ga. 731; Parker v. Riley, 21 Ga. 427 (2); Mallet v. Watkins, 132 Ga. 700-1, and cit.; Swindell v. Bainbridge State Bank, 3 Ga. App. 364, 366-7; Savannah Ice Co. v. Canal-Louisiana Bank, 12 Ga. App. 819 (10); First Nat. Bank v. Monroe, 135 Ga. 614 (2); Gordon v. Mitchell, 68 Ga. 12 (3), 17 et seq.; Penitentiary Co. v. Gordon, 85 Ga. 160 (8), 170.

Cited contra: Georgia R. Co. v. Kent, 92 Ga. 782; Morris v. Munroe, 30 Ga. 630; Sprigs v. Bramblett, 54 Ga. 348; Bass v. Bass, 73 Ga. 135; Tyson v. Woodruff, 108 Ga. 368; Thornton v. Lemon, 114 Ga. 155; 6 Am. & Eng. Enc. L. (2d ed.) 713, and cit.; City Ry. Co. v. Floyd County, 115 Ga. 655, 657; Rogers v. Ball, 54 Ga. 15; Glaze v. W. & A. R. Co., 67 Ga. 761 (2); 3 Cook, Corp. (7th ed.) § 750, p. 2749; New Albany v. Burke, 11 Wall. 96; First Nat. Bank v. Exchange Bank, 92 U. S. 122; Illinois Pneumatic Co. v. Berry, 113 U. S. 322; Dickerson v. Dickerson, 19 Ga. App. 269; Kennedy v. Maddox, 15 Ga. App. 684 (distinguished).

Park & Stone, Glessner & Collins, for plaintiff in error. Pottle & Hofmayer, contra. •