Foundry Systems & Supply, Inc. v. Industry Development Corp.

• Decision Date: 13 October 1971
• Docket Number: No. 1,No. 46570,46570,1
• Citation: Foundry Systems & Supply, Inc. v. Industry Development Corp., 185 S.E.2d 94, 124 Ga.App. 589 (Ga. App. 1971)
• Court: Georgia Court of Appeals
• Parties: FOUNDRY SYSTEMS & SUPPLY, INC., et al. v. INDUSTRY DEVELOPMENT CORPORATION

Page 94

185 S.E.2d 94

124 Ga.App. 589

FOUNDRY SYSTEMS & SUPPLY, INC., et al. v. INDUSTRY DEVELOPMENT CORPORATION.

No. 46570.

Court of Appeals of Georgia, Division No. 1.

Oct. 13, 1971.

Syllabus by the Court

The primary consideration for the construction of a release is whether it shows an intention on the part of the injured person to acknowledge full satisfaction of his damage, thus relinquishing his cause of action, or whether it shows an intention only to accept a satisfaction of a part of the claim. The intention of the parties as shown by the instrument will be given effect. Pa. Threshermen & Farmers Mutual Casualty Ins. Co. v. Hill, 113 Ga. App. 283, 148 S.E.2d 83; Henderson v. Garbutt, 121 Ga.App. 291, 173 S.E.2d 445. The claim on which the plaintiff sues here was not extinguished either by the dismissal of a prior suit or a subsequent release executed by the defendants.

Industry Development Corp. sued Foundry Systems & Supply, Inc., its president, Fraser, and the property owner, Wagner Mfg. Co., for $11,275.00 allegedly due 'upon the purchase order of Foundry Systems No. 10869-A1 and plaintiff's Invoice No. 3524 for materials on an account' which were furnished to Foundry Systems at the request of Fraser and installed on the premises of Wagner Mfg. Co. The defendants plead accord and satisfaction. Plaintiff moved for a partial summary judgment striking these defenses and defendants appeal from the grant of this motion.

The relevant evidence on the hearing of the motion includes the following: plaintiff had previously filed an action against Foundry Systems, Fraser and others based on an unrelated transaction, to which these defendants filed a counterclaim setting up, inter alia, that plaintiff and others breached their contract 'for supplying materials to be 'installed on the premises of Wagner Mfg. Co. and negligently or wifully caused damage to Foundry Systems by delaying delivery of the materials contracted beyond the time specified in the contract and by breach of warranty and by negligent manufacture of those materials.' Damages were sought in the sum of $3,426.87 resulting from the improper manufacture, negligence and breach of warranty in construction of the materials supplied and $1,306.66 due to loss of use of funds resulting therefrom. The parties subsequently voluntarily dismissed both the action and counterclaims with prejudice. Following this the defendants executed a release of Industry Development, its president and certain others from all injury and property damage occur ring under the facts alleged in the set-off and counterclaim of Fraser and Foundry Systems and Supply, Inc., but specifically acknowledged that the release did not bar industry Development Corp. from asserting claims against them other than those specifically alleged in the dismissed complaint.

Greer & Murray, Kenneth C. Pollock, Atlanta, for appellants.

Stack & O'Brien, Edgar A. Neely, III, John Harris Paer, Atlanta, for appellee.

DEEN, Judge.

1. Whether an accord and satisfaction defense is available depends on the language of the first action and counterclaim, the release, and the affidavits attached to the motion for summary judgment. The language of the release ('The undersigned hereby acknowledge prior receipt of a copy of this release and that it is notice in writing of the lack of consent of the party or parties released hereby') is meaningful only in a third-party release situation such as those arising under Code § 56-408.1 where the consideration for the release is advanced for the benefit of another. This release recites a consideration of $10 and other valuable considerations. Defendants state that the release was executed at the plaintiff's request, and the plaintiff's president made an affidavit to the effect that the release was 'taken by Industry Development Corporation.' Neither statement is controverted. Accordingly, it must be assumed that the plaintiff did in fact consent to the release.

2....