Mullinax v. Shaw, 54667

• Decision Date: 26 October 1977
• Docket Number: No. 54667,No. 3,54667,3
• Citation: 239 S.E.2d 547,143 Ga.App. 657
• Parties: E. L. MULLINAX et al. v. A. F. SHAW
• Court: Georgia Court of Appeals

Page 547

239 S.E.2d 547

143 Ga.App. 657

E. L. MULLINAX et al. v. A. F. SHAW.

No. 54667.

Court of Appeals of Georgia, Division No. 3.

Oct. 26, 1977.

S. M. Landress, Marietta, for appellants.

Lokey & Bowden, Glenn Frick, Atlanta, for appellee.

WEBB, Judge.

Dr. Allan F. Shaw provided over a two-year period extensive dental services to Mrs. Mullinax for which she paid him a total of $2550. She complained to Dr. Shaw about the fitting of the upper plate, particularly because her lip would not stretch over her front teeth and was getting "puffy." She went to the dentist several times and he would take off a little of the cuspid. Her last visit was on March 11, 1974 because that morning about four o'clock she said she felt a muscle in her upper lip break. Her husband accompanied her, and after some discussion Dr. Shaw gave her his check for $700 on which was typed "endorsement of this check releases Dr. Allan F. Shaw from any further obligation, professionally and financially." Mrs. Mullinax read the words on the back of the check and the next day signed the check, deposited the funds to her account, and has spent the money. Almost two years later, March 3, 1976, Mr. and Mrs. Mullinax filed their complaints.

This appeal is from the grant of defendant's motion for summary judgment. Prior to the order granting judgment, the trial judge by order filed January 25, 1977 concluded that the acceptance by plaintiff of the check, in the absence of fraud, constituted an accord and satisfaction, but such accord might be subject to avoidance under Code Ann. § 37-710. ¹

He thereupon ordered that "the court, sitting as a court of equity, will at the request of the plaintiff, schedule trial on any factual issues without the intervention of a jury as shall relate to the question of consideration or mental ability." Following a subsequent hearing on these two issues, the trial court made his findings of fact and conclusions of law. The court found "that the defendant did deliver over unto the plaintiff, who was then accompanied by her husband, Emmitt L. Mullinax, a sum of money which constituted the sum paid by plaintiff for the dental work which plaintiff claims to have been improperly done. Accordingly, there is no evidence of great disparity of consideration.

"Further, the court has inquired as to the matter of mental ability, and finds the plaintiff to be a mature, intelligent, adult, in full possession of every physical and mental faculty, and possessed of an eleventh grade education.

"Upon further contention by the plaintiff that she was emotionally distraught at the time, the court has considered the evidence, and finds that while plaintiff was, in fact, greatly disturbed over her physical condition, that such disturbance in no way impaired her mental ability. Additionally, it is without dispute that plaintiff, having received the check from defendant while accompanied by her husband, did not deposit the same until the following day. Accordingly, the court finds as a matter of fact that there was not 'great disparity of mental ability in contracting a bargain.' "

The trial court concluded that the use of its "equitable power in setting aside the accord is not justified" and granted summary judgment for defendant.

Appellants enumerate four alleged errors: (1) the granting of defendant's motion for summary judgment; (2) the ruling that the wording on the check constituted a release as a matter of law; (3) failure of the trial court to submit to a jury whether on the facts there was a great disparity of mental ability between the parties; and (4) refusal to allow appellants to amend their complaints to raise the issue of fraud.

1. The first two enumerations of error present the issue of whether the uncontroverted facts and law are sufficient to support the grant of summary judgment. Plaintiffs contend that the words on the back of the check, which Mrs. Mullinax endorsed and cashed, did not constitute a release as a matter of law. The words on the check read "endorsement of this check releases Dr. Allan F. Shaw from any further obligation professionally and financially."

When a party makes an offer of a certain sum to settle a claim, the amount of which is in bona fide dispute, with the condition that the sum offered, if taken at all, must be received in full satisfaction of the claim, and the party receives the money, he takes it subject to the condition attached to it, and it will operate as an accord and satisfaction.' (Cit.). The same ruling applies where the claimant, instead of receiving money as a settlement of his claim, receives a check or draft from the other party in full settlement of the claim . . . 'Where, without the practice of any fraud upon her, a plaintiff accepts, in full satisfaction of her claim, a lesser amount than what she claims is due her, there is an accord and satisfaction, and she is not entitled to a recovery. (Cits.).' " Holton Dodge, Inc. v. Baird, 118 Ga.App. 316, 317(1) (2), 163 S.E.2d 346, 347-48 (1968).

" Where one who can read signs a contract without apprising himself of its contents, otherwise than by accepting representations made by the opposite party, with whom there exists no fiduciary or confidential relation, he cannot defend an action based on it, or have it canceled or reformed, on the ground that it does not contain the contract actually made, unless...