Alfred Struck Co. v. Slicer , 23 Ga. App. 52 ( 1918 )

Luke, J.

The petition does not show on its face that there had been a complete ( accord and satisfaction, and therefore it was error for the trial judge to sustain a demurrer attacking it on this ground. An accord and satisfaction is a contract, and consequently must be based on a valid consideration. Richmond &c. R. Co. v. Walker, 92 Ga. 485 (17 S. E. 604); Carlton v. W. & A. R. Co., 81 Ga. 531 (7 S. E. 623); Armour v. Ross, 110 Ga. 403 (3 5 S. E. 787). There was no consideration for the alleged accord and satisfaction in the instant case. Bouvier’s Law Dictionary (vol. 1, p. 103) defines accord and satisfaction as an agreement between two parties to give and accept something in satisfaction of a' right of action which one has against the other, which when performed is a bar to all actions on this account. The same authority, dealing with the same subject, declares: “It must be advantageous to the creditor, and he must receive an actual benefit therefrom which he would not otherwise have had. . . Restoring to the plaintiff his chattels or his land, of which the defendant has wrongfully dispossessed him, will not be any consideration to support a promise by the plaintiff not to sue him for those injuries.” These statements are supported by abundant authority, and are, we think, a clear, succinct, and correct enunciation of the principle applicable to the petition under consideration, and clearly show that there was no accord and satisfaction. So also Bouvier’s Law Dictionary declares (p. 107) : “Accord and satisfaction, when completed, has two effects: it is a payment of the debt; and it is a species of sale of the thing given by the debtor to the creditor in satisfaction.” [Italics ours.] This statement very strongly emphasizes the essential element that the thing which the creditor receives must belong to the debtor. The contrary is distinctly alleged in the petition under review. Where one claims a debt against another, the correctness of which is disputed, and the debtor sends a check or other medium of payment to the creditor, 'with the statement that the payment is in full settlement of the claim, the creditor cannot accept and use this payment and after-wards maintain a suit for the balance. In such a case the debtor has given something which belongs to him, upon the condition that the creditor accept it in full settlement of the claim. It will be recalled that in the case at bar the defendant did not part with anything which belonged to him. The money sent to and accepted and used by the plaintiff was the plaintiff’s own property. This statement is sufficient of itself to show that the doctrine of accord and satisfaction did not apply in this case. As illustrative of the fallacy of the defendant’s contention that the petition showed on its face that there was a complete accord and satisfaction, plaintiff’s counsel in his brief states the following hypothetical case, which we deem entirely apropos: A enters into a bind ing contract with B, whereby the former is to shoe a team of four horses entrusted to him at the cost of $2 per head, and the latter returns only three of the horses, saying,.'“I agreed to shoe these four horses for $2 a head, or $8 altogether, but I find that it is worth one fourth .of the team of four horses. I have therefore taken one of the horses, and here are the other three. Notwithstanding I had a firm contract with you to do the work for $8, and you entrusted 'these horses to me under that contract, still I am 'going to charge you one horse.” We cannot'bring ourselves to the conclusion that by accepting the three horses, which were his property, B would be barred from thereafter instituting suit to recover the horse held by A as payment for shoeing all four horses, when the latter was under contract to do the entire work for $8.

The decision in the case of Ryan v. Publishing Co., 16 Ga. App. 83 (84 S. E. 834), is relied upon by the defendant, who contends that it Controls the instant case. That case though somewhat akin to this case, is nevertheless clearly distinguishable on its facts, the all-important distinction being that in the Ryan case the relation of-debtor and creditor existed, whereas in this case no such relation is sliown. See also Roberts v. Bank of Eufaula, 20 Ga. App. 226 (3) (92 S. E. 1015). We therefore reiterate that the trial judge erred in sustaining the demurrer and dismissing the guit.

Judgment reversed.

Wade, C. J., and Jenkins, J., concur.