Rural Electric Appliance Co. v. Joiner , 69 Ga. App. 353 ( 1943 )

The court erred in overruling the motion to strike the answer.

DECIDED APRIL 21, 1943. Rural Electric Appliance Company sued Joiner for the balance of the purchase price of an electric refrigerator. The refrigerator was sold under a conditional contract, with a down payment of $17.50. The balance was to be paid in monthly installments of $4.50 per month. The plaintiff sought to recover the balance of the purchase price, and attached to the petition as an exhibit a copy of the conditional contract of sale. No further payment was made by the defendant after the cash payment.

The material portions of the answer are as follows: "For want of sufficient information defendant can neither admit or deny paragraph 2 of plaintiff's petition and demands strict proof of the same. Defendant further says that `Exhibit A' of plaintiff's petition shows a balance of $139.40 while paragraph 2 of plaintiff's petition shows a balance of $121.25. Defendant denies any indebtedness whatsoever to plaintiff since an agreement was made between said J. Loyd Baxter, one of the co-partners composing the firm of Rural Electric Appliance Company, on or about January 10, 1941, as follows: `Plaintiffs were to pick up the electric refrigerator purchased by defendant from plaintiffs and accept the same in settlement of a certain sales agreement entered into between defendant and plaintiffs.' Said original agreement is not in the possession or control of defendant and therefore a copy of said contract can not be attached hereto. Said contract is in the possession of plaintiffs, and they are hereby given notice to produce the same in court at the March, 1942, term of said court. Defendant shows that in accordance with said agreement heretofore set out defendant immediately accepted the agreement telling Mr. Baxter that the box was subject to his order, and the same was disconnected from the electric current and was held by defendant as the property of the Rural Electric Appliance Company and subject to their order. Defendant further shows that on February 13, 1941, a suit was filed into this court signed by W. B. Withers and listed as Case No. 8824, and being a suit upon a certain promissory note stating that a copy of said note was attached and marked `Exhibit A' purported to be a suit between the same parties and purported to be upon a note that was given in payment for the same electric box, and for reasons unknown to defendant the same was dismissed and withdrawn on June 23, 1941, on the same day that the case was set for trial in this court. Defendant shows that he made actual delivery to the plaintiff of said box in consideration of said agreement heretofore set out in full payment of said contract, and that said box was accepted at that time by J. Loyd Baxter under said agreement and that the same by said agreement is fully paid. Defendant shows that after this agreement was executed by both parties that said box was levied upon by the sheriff of Thomas County and was sold on the 7th day of October, 1941, and during the same time that a hurricane was raging in this city, and although the sale was conducted during the legal hours for sale it was not made at eleven o'clock which is the regular time at which legal sales are made in Thomas County, Georgia. Defendant further shows that said sale was made for the sum of $50, which is greatly below the value of said box; said box being at the time of said sale of the actual value of $125 or more. Defendant shows that plaintiff purchased the said box at the said sale and was not deprived of the box by any act of defendant, and defendant has not at any time exercised or used any control over said box since the same was delivered to the plaintiff under said agreement. A copy of said levy is hereto attached, marked `Exhibit A' and made a part hereof. Defendant shows that said sale was and is illegal and void and should be set aside because the sale could not be considered a public sale when said hurricane was raging and the public were unable to be at the sale. Defendant denies paragraph 3 so far as it states that attorney's fee shall be allowed for a suit on said note, but admits that part which states that plaintiff did give notice to defendant."

The plaintiff made a motion to strike the answer on the ground "that said answer did not set forth any valid defense at law to plaintiff's suit upon the written contract as shown in the petition." The court overruled this motion and the plaintiff filed exceptions pendente lite. The trial resulted in a verdict for the defendant. The plaintiff filed his motion for new trial on the usual general grounds. The motion was overruled and the defendant excepted. The bill of exceptions contains an assignment of error on the exceptions pendente lite. The issue to be decided is involved on the pleadings; that is to say whether the court erred in overruling the motion to strike the answer on the ground that it was insufficient in law as a valid defense to the petition. In this we think the court erred. "A rescission of the contract by consent, or a release by the other contracting party, is a complete defense." Code, § 20-905. "Accord and satisfaction is where the parties, by a subsequent agreement, have satisfied the former one, and the latter agreement has been executed. The execution of a new agreement may itself amount to a satisfaction, where it is so expressly agreed by the parties; and without such agreement, if the new promise is founded on a new consideration, the taking of it is a satisfaction of the former contract." § 20-1201. "The accord and satisfaction must be of some advantage, legal or equitable, to the creditor, or it will not have the effect of barring him from his legal rights. The acknowledgment of a disputed title, or the securing of a doubtful claim, would be such an advantage." § 20-1203.

Under the principle established by these sections, when viewed in the light of the many decisions of our appellate courts, the answer sets up no defense. The allegations of the answer must be construed most strongly against the defendant. He admits the execution of the contract and seeks to avoid the effect of it by alleging a subsequent naked agreement. The defendant alleges that he and the plaintiff had an agreement whereby the plaintiff was to get the refrigerator and defendant in return was to receive his original sales obligation. Neither of these things was done. Even if there was an accord between them, it was executory and without satisfaction. The accord and satisfaction was never executed. The answer nowhere alleges any advantage, legal or equitable, to the creditor sufficient to bar him from its legal rights. Nor does the answer allege other sufficient facts to sustain a legal or equitable defense. In further support of the ruling here made see Long v. Scanlan, 105 Ga. 424, 426 (31 S.E. 436); Purser v. Rountree, 142 Ga. 836 (3) (83 S.E. 958); Burgamy v. Holton, 165 Ga. 384, 395 (141 S.E. 42);Denson v. Battle, 17 Ga. App. 575 (2) (87 S.E. 842);Hoffman v. Franklin Motor-Car Co., 32 Ga. App. 229 (122 S.E. 896); Messenger Publishing Co. v. Overstreet, 36 Ga. App. 458

(137 S.E. 125); Redman v. Woods, 42 Ga. App. 713 (157 S.E. 252);Cohutta Talc Co. v. Gulf Refining Co., 47 Ga. App. 439 (170 S.E. 545); Wilder v. Montgomery, 51 Ga. App. 231 (179 S.E. 861).

In view of what has been said, the court erred in overruling the motion to dismiss the answer. It is unnecessary to deal with the evidence which was admitted after that erroneous ruling.

Judgment reversed. Broyles, C. J., and MacIntyre, J., concur.