Walsey v. Alterman Foods, Inc.
| Citation | 140 Ga.App. 270,231 S.E.2d 3 |
| Decision Date | 13 October 1976 |
| Docket Number | No. 2,No. 52602,52602,2 |
| Parties | J. C. WALSEY et al. v. ALTERMAN FOODS, INC |
| Court | United States Court of Appeals (Georgia) |
Gershon, Ruden, Pindar & Olim, Jay E. Loeb, Atlanta, for appellants.
Arnall, Golden & Gregory, H. Fred Gober, Atlanta, for appellee.
Walsey and Jarrard, a partnership, doing business as Sheraton Gardens Inn, bring this appeal from a verdict and judgment in favor of Alterman Foods, Inc., in the amount of $6,143.21 principal and $545.03 interest. Appellants assert two enumerations of error, one dealing with the rejection of their defense of accord and satisfaction and the second with an alleged failure of proof to show a default in the questioned promissory note.
The facts reflect that Alterman brought suit on an open account complaining that Walsey and Jarrard were delinquent in payments in an amount equal to the above stated judgment. Subsequent to the filing of the suit by Alterman, the partnership entered into an agreement with Alterman that in consideration of dismissing its suit without prejudice, the partnership would issue a promissory note in the amount of $6,500, payable in several installments. The agreement provided that the suit be settled by the payment of the $6,500 but that the suit would be postponed only so long as the payment schedule was maintained. The note expressly stated that it was for and in consideration of the dismissal of the civil action and agreed to make the installment payments. Appellants maintain that the issuance of this note followed by the voluntary dismissal of the suit by Alterman worked an accord and satisfaction of the open account indebtedness. Alterman urges that the suit was dismissed subject to payment of costs which it alleges have never been paid and thus properly was reinstated. Held:
1. It is a general rule, as expressed in Code § 20-1004 and in a plethora of cases that a note given for an obligation already incurred, such as an open account, is not payment until it is itself paid, absent some express agreement or compelling circumstances which clearly indicates a contrary intention of the parties. A mere transfer by the creditor of the indebtedness from the accounts receivable ledger to notes receivable does not work a payment of the account (Hatcher & Baldwin v. Comer & Co., 75 Ga. 728), nor would marking it 'paid.' Kinard v. First Nat. Bank of Sylvester, 125 Ga. 228, 229, 53 S.E. 1018.
Whatever might have been implied by the parties in this case by the giving of the promissory note as relates to the open account, there certainly is no clearly expressed agreement as to what was intended to become of the open account indebtedness. We can only assume that there was no intent to extinguish the open account debt since the suit on the open account was postponed only so long as the payments on the promissory note were kept current. The expressed consideration for the promissory note was not the extinguishment of the open account but the settlement of the pending suit. We must and do conclude that the giving of the promissory note in this case did not work a...
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Sawyer v. Citizens and Southern Nat. Bank
...Bank of Gainesville v. Appalachian Industries, Inc., 146 Ga.App. 630, 634(5), 247 S.E.2d 422 (1978); Walsey v. Alterman Foods, Inc., 140 Ga.App. 270(1), 231 S.E.2d 3 (1976)), and no evidence of a meeting of the minds to substitute a new agreement for the original contract. Woodstock Road, 1......
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Kelley v. R S & H of North Carolina, Inc., s. A90A1012
...express agreement or compelling circumstances which clearly indicates a contrary intention of the parties." Walsey v. Alterman Foods, 140 Ga.App. 270, 271, 231 S.E.2d 3 (1976). See also Malak v. McGinnis, 257 Ga. 622(1), 361 S.E.2d 798 (1987); Norton v. Paragon Oil Can Co., 98 Ga. 468(1), 2......