1. It was error for the court to submit to the jury any question except that of accord and satisfaction.
2. It was error for the court to charge in effect that the burden of disproving the alleged accord and satisfaction set up by the defendant was on the plaintiff.
DECIDED NOVEMBER 28, 1941. REHEARING DENIED DECEMBER 10, 1941.
Albert G. Foster, as executor of the estates of F. C. Foster and of Mrs. Julia F. Foster, sued C. R. Mason to recover the value of certain timber which it was alleged was cut off the lands of said estates by wilful trespassers and sold to Mason. Among other things the defendant set forth a plea of accord and satisfaction, as follows: "As a compromise or mutual accord and satisfaction of the claim petitioner now seeks to enforce, defendant on the 12th day of February, 1938, paid to petitioner in cash fifty-two and 66/100 dollars, although defendant then and there denied to him any liability whatsoever, and the said sum was then and there accepted by petitioner expressly as a final release and settlement of any and all demands against defendant. Petitioner, when he accepted by petitioner expressly as a final release and settlement of any and all demands against defendant. Petitioner, when he accepted said amount, definitely agreed with defendant he would never bring suit on this claim, otherwise the defendant would not have made said payment." The judge submitted to the jury the question as to whether the foregoing plea had been sustained, and also whether the plaintiff had made out a case. The jury found in favor of the defendant and the plaintiff excepted to the overruling of his motion for new trial.
1. In its decision in this case when it was before this court the first time, Mason v. Foster, 62 Ga. App. 107
(8 S.E.2d, 180), this court held that under the evidence on the first trial there was but one issue to be submitted to the jury, that of accord and satisfaction. The evidence on the trial under review demanded a finding for the plaintiff for the value of the timber received by the defendant on a stumpage basis, or $4 per thousand feet, unless the jury found in favor of the defendant's plea of accord and satisfaction, and it was error for the court to submit to the jury the question whether the plaintiff would be entitled to recover even if it rejected the plea of accord and satisfaction.
2. The court having charged the jury that if, after a consideration of all the evidence, including the evidence for the plaintiff and the defendant, the jury came to the conclusion that the plaintiff was entitled to recover, and that if the plaintiff had proved his case by a preponderance of the evidence he was entitled to a verdict,
it was error for the court to specifically instruct the jury that if they believed from a preponderance of the evidence that there was not a settlement as set out and contended for by the plaintiff and that if the plaintiff had carried the burden of proof by a preponderance of the evidence the jury should bring in a verdict for the plaintiff. This is true notwithstanding the court had specifically instructed the jury that the burden rested on the defendant to establish a settlement by a preponderance of evidence.
There is no merit in the other assignments of error. The court erred in overruling the motion for new trial.
Judgment reversed. Stephens, P. J., concurs.