Hinely v. Barrow

• Citation: 169 Ga.App. 529,313 S.E.2d 739
• Decision Date: 05 January 1984
• Docket Number: No. 67356,67356
• Parties: HINELY v. BARROW.
• Court: United States Court of Appeals (Georgia)

Page 739

313 S.E.2d 739

169 Ga.App. 529

HINELY v. BARROW.

No. 67356.

Court of Appeals of Georgia.

Jan. 5, 1984.

Rehearing Denied Jan. 17, 1984.

Kenneth L. Shigley, Atlanta, Edward K. Jones, Roswell, for appellant.

Harold A. Lane, Douglasville, for appellee.

DEEN, Presiding Judge.

On February 1, 1978, Hinely borrowed $2,500 from his father-in-law, Barrow, and on January 10, 1980, he borrowed an additional $1,000 from Barrow; on both occasions, Hinely executed promissory notes for Barrow. It is undisputed that he has never paid the indebtedness. At the time the two promissory notes were executed, Hinely was married to Barrow's daughter; they were divorced in March 1980.

Regarding that divorce, some negotiation of the property settlement took place in the office of Barrow's attorney, who also represented Mrs. Hinely in the divorce matter. Of primary importance to this case was the agreement between Hinely and his ex-wife regarding the latter's purchasing Hinely's interest in the house which they jointly owned. Hinely claimed that his equity interest in the house was $15,000, but that he had agreed to take only $12,000 in addition to Mrs. Hinely's assurances that she would get her father to forgive the two promissory notes. Hinely admitted that he had never actually discussed such a cancellation of the notes with Barrow; rather, he had reached that conclusion completely on the statements of his ex-wife. As evidence that his ex-wife had apparent authority to make a binding agreement on behalf of her father, Hinely emphasized their close familial relationship and the fact that she had been employed as Barrow's secretary for several years. There also was some indication that after Hinely had executed the second promissory note, his ex-wife had delivered it to Barrow.

On October 23, 1980, Barrow requested payment of the indebtedness, and on December 3, 1980, his attorney repeated the demand. Hinely refused to pay on the grounds that an accord and satisfaction had occurred, and Barrow commenced this action against Hinely to recover the amount of indebtedness and interest. Following the jury's verdict for Hinely, the trial court granted judgment for Barrow notwithstanding the verdict, and Hinely appeals. Held:

OCGA § 13-4-101 (Code Ann. § 20-1201) provides that "[a]ccord and satisfaction occurs where the parties to an agreement, by a subsequent agreement, have satisfied the former agreement, and the latter agreement has been executed." An accord and satisfaction is a contract and thus requires a meeting of the minds of the two parties before it is valid and binding. Sawyer v. C & S Nat. Bank, 164 Ga.App. 177, 296 S.E.2d 134 (1982); Woodstock Rd. Inv. Prop. v. Lacy, 149 Ga.App. 593, 254 S.E.2d 910 (1979). In the instant case, the appellant admits that he and Barrow never personally discussed or agreed upon the cancellation of the two promissory notes; the validity of the appellant's defense of accord and satisfaction thus requires proof that Barrow had indirectly assented to such a result through the actions and statements of his daughter. In short, the appellant had the burden of proving a principal/agent relationship between the ex-wife and Barrow.

An agency relationship may arise by implication as well as by express authority, and agency may be proved by circumstantial evidence. OCGA § 10-6-1 (Code Ann....