Taylor v. Central of Georgia Ry. Co.

• Court: Georgia Court of Appeals
• Writing for the Court: TOWNSEND; GARDNER, P. J., and CARLISLE
• Citation: Taylor v. Central of Georgia Ry. Co., 108 S.E.2d 103, 99 Ga.App. 224 (Ga. App. 1959)
• Decision Date: 15 January 1959
• Docket Number: No. 37451,No. 2,37451,2
• Parties: S. E. TAYLOR v. CENTRAL OF GEORGIA RAILWAY COMPANY

Page 103

108 S.E.2d 103

99 Ga.App. 224

S. E. TAYLOR v. CENTRAL OF GEORGIA RAILWAY COMPANY.

No. 37451.

Court of Appeals of Georgia, Division No. 2.

Jan. 15, 1959.

Rehearing Denied March 9, 1959.

Robert H. Jordan, Talbotton, for plaintiff in error.

Swinson, Elliott & Schloth, William J. Schloth, Columbus, for defendant in error.

Syllabus Opinion by the Court.

TOWNSEND, Judge.

1. The Central of Georgia Railway Company obtained default judgments against S. E. Taylor, the largest of which was in the sum of $10,953.96, and subsequently levied this execution upon certain of his property. Taylor filed an affidavit of illegality on the ground that there had been an accord and satisfaction by reason of the following: The plaintiff and the defendant in fi. fa. had agreed, through the president of the plaintiff company, that the plaintiff would accept the sum of $7,500 in satisfaction of all three executions, said sum payable at the rate of $300 per month plus interest; the defendant has performed this agreement and had, at the time of the levy of the fi. fa. paid these monthly instalments on time for a period of 10 months and is not in arrears on his payments, and the executions are accordingly proceeding illegally.

Code, § 20-1201 provides: '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.' Code, § 20-1204 provides: 'An agreement by a creditor to receive less than the amount of his debt cannot be pleaded as an accord and satisfaction, unless it be actually executed by the payment of the money, or the giving of additional security, or the substitution of another debtor, or some other new consideration.' The plaintiff in execution here relies upon the line of cases annotated under these Code sections which hold that an agreement to accept less than the full amount of an admitted, liquidated indebtedness does not amount to a satisfaction until fully executed, and that part payment of the lesser amount is not a satisfaction of the entire debt but only a defense pro tanto. The defendant in execution contends that an accord and satisfaction exists here because the new agreement has been fully executed according to its terms--that is, he did not breach the accord, but paid each instalment as it came due, and no more than this was required of him. The question at issue then is whether there is a valid accord and satisfaction where, although the agreement has not been fully executed, it has been fully executed as to those obligations on the part of the defendant which had accrued thereunder at the time when the levy was made. If an accord were an ordinary contract, this would of course be amply sufficient. We have accordingly eliminated all cases on the subject of accord and satisfaction which do not have therein the element of part performance, and of the latter have distinguished cases in which there was a failure by the defendant to perform some act which under the new agreement he undertook to perform. See Kennedy v. Maddox, 15 Ga.App. 684, 84 S.E. 153; Walbridge v. Jacobs' Pharmacy Co., 60 Ga.App. 404, 3 S.E.2d 876. There still remain cases to sustain the plaintiff's position that the accord, in the absence of full payment, does not amount to a satisfaction. In Blalock v. Jackson, 94 Ga. 469, 20 S.E. 346, 347, defendant in fi. fa. alleged an agreement to accept a lesser amount than the amount of judgment performed by the payment of $350 in instalments and tender of the balance as soon as the defendant was able to borrow it. The tender was refused. The court held: 'An executory agreement by the plaintiff in execution with the defendant to accept in payment less than the whole amount of the debt is not obligatory without a fresh consideration to support it, and mere payment of a part of the sum agreed on will not serve as a consideration.' It was likewise held in McLendon v. Johnson, 69 Ga.App. 214(4), 25 S.E.2d 53, that an agreement to release a debt of $4500 by payment of $270 annually during the lifetime of the payee, being executory in nature, did not amount to a release although it recited the acceptance of the first instalment therein. In Hoffman v. Franklin Motor Car Co., 32 Ga.App. 229, 235, 122 S.E. 896, 899, paraphrasing Long v. Scanlan, 105 Ga. 424, 31 S.E. 436, it is held: 'Accord executed is satisfaction; accord executory is only substituting one cause of action in the room of another * * * Every accord ought to be full, perfect, and complete; for if divers things are to be performed by the accord, the performance of part is not sufficient, but all ought to be performed. If the thing is to be performed at a day to come, tender and refusal is not sufficient, without actual satisfaction and acceptance. To be good, the accord must be fully executed; execution of part and tender of performance of the residue is not sufficient. As long as the accord is executory, although it is partially performed, the original cause of action is not extinguished.' See also Dixon v. Ernest L. Rhodes & Co., 44 Ga.App. 678, 162 S.E. 716; Redman v. Woods, 42 Ga.App. 713, 157 S.E. 252; Wilder Bros. v. Montgomery, 51 Ga.App. 231(2), 179 S.E. 861. This language follows the wording of our Code section and also the common law rule on the subject. See 1 C.J.S. Accord and Satisfaction § 29; Sargent v. Donahue, 94 Vt. 271, 110 A. 442; Corrigan v. Payne, 312...