Lanier v. Council

ON MOTION EOR REHEARING.

Eussell, C. J.

We shall advert to but one portion of the motion for a rehearing, for the reason that a rereading of the opinion develops that all of the questions raised by the motion were adequately dealt with, except perhaps one. The point is made that the court failed to consider paragraph 8 of the petition, in which the plaintiff set forth the purpose of giving the security deed involved in this case. From the record it will be observed that the plaintiff, in making any concession which may be inferred from his language in paragraph 8, qualified that concession by his amendment filed May 23, 1933, so as to require paragraph 8 to be considered in connection with the additional allegations contained in this amendment; and therefore the judge did not err in thus considering paragraph 8. A later amendment set up an accord and satisfaction which was subsequent to the facts alleged in paragraph 8, and under this amendment the plaintiff was entitled to plead and prove a subsequent agreement with Lanier which rendered ineffectual the facts alleged in paragraph 8. Rehearing denied.