Bass Dry Goods Co. v. Roberts Coal Co.

• Decision Date: 25 July 1908
• Docket Number: 1,103.
• Citation: 61 S.E. 1134,4 Ga.App. 520
• Parties: BASS DRY GOODS CO. v. ROBERTS COAL CO.
• Court: Georgia Court of Appeals

61 S.E. 1134

4 Ga.App. 520

BASS DRY GOODS CO. v. ROBERTS COAL CO.

No. 1,103.

Court of Appeals of Georgia

July 25, 1908

Syllabus by the Court.

Where the aggregate amount of an account is in dispute, but the debtor concedes a liability for a part thereof, and tenders that sum in payment, on the condition that it shall be in full settlement, the creditor, by retaining and using the money, check, or other thing of value so tendered extinguishes the whole account, notwithstanding he protests at the time that the remainder of his claim is still due and owing.

Error from City Court of Atlanta; A. E. Calhoun, Judge.

Action by the Roberts Coal Company against the Bass Dry Goods Company. Judgment for plaintiff. Defendant brings error. Affirmed on conditions.

Dodd & Dodd, for plaintiff in error.

Horton Bros. & Burress, for defendant in error.

POWELL J.

To quote from Chicago Ry. Co. v. Clark, 178 U.S. 353 20 S.Ct. 924, 44 L.Ed. 1099, cited approvingly in Redmond v. Atlanta & Birmingham Ry., 129 Ga. 140, 58 S.E. 877 "The cases are many in which it has been held that where an aggregate amount is in dispute, the payment of a specified sum conceded to be due, that is by including certain items, but excluding disputed items, on condition that the sum so paid shall be received in full satisfaction will be sustained as an extinguishment of the whole." In such cases, if the debtor tenders the sum as to which he is willing to concede a liability on condition that it is to be accepted in full settlement, the creditor must decline the tender, and not retain and use the money, check, or other thing of value offered in full settlement. Redmond v. Railway, supra; Walker v. O'Neill Mfg. Co., 128 Ga. 835, 58 S.E. 475; Walker v. Wadley, 124 Ga. 286, 52 S.E. 904; Jenkins v. National Ass'n, 111 Ga. 732, 36 S.E. 945; Hamilton v. Stewart, 105 Ga. 300, 31 S.E. 184; Id., 108 Ga. 472, 34 S.E. 123. The subject is so thoroughly reviewed in the Redmond Case that we do not deem it necessary to distinguish the following cases, which, while apparently to the contrary in some of their phases, are nevertheless clearly and rationably distinguishable. Carlton v. W. & A. R. Co., 81 Ga. 531, 7 S.E. 623; Armour v. Ross, 110 Ga. 403, 35 S.E. 787; Georgia Railroad Co. v. Gouedy, 111 Ga. 310, 36 S.E. 691; Robinson v. Leatherbee Co., 120 Ga. 901, 48 S.E. 380. The recovery as to the $107.70 is unauthorized; but there is no reason for...