Wood v. Yancey Bros. Co., 50569

• Decision Date: 18 September 1975
• Docket Number: No. 50569,No. 2,50569,2
• Citation: 135 Ga.App. 720,218 S.E.2d 698
• Parties: J. M. WOOD v. YANCEY BROTHERS COMPANY
• Court: Georgia Court of Appeals

Page 698

218 S.E.2d 698

135 Ga.App. 720

J. M. WOOD v. YANCEY BROTHERS COMPANY.

No. 50569.

Court of Appeals of Georgia, Division No. 2.

Sept. 18, 1975.

D. D. Veal, Eatonton, for appellant.

Clifton, Helms & Dodd, David A. Dodd, Lithia Springs, for appellee.

QUILLIAN, Judge.

Yancey Bros. Company filed its complaint against James M. Wood in Putnam Superior Court. The complaint was in 2 counts and alleged in Count 1 that: defendant executed a promissory note payable to the plaintiff in the amount of $12,994.58 and in conjunction therewith executed a conditional sales security agreement covering certain personal property, a caterpillar bulldozer; defendant defaulted in payment of the note and pursuant to the security agreement terms the plaintiff repossessed the personal property and sold it at public auction for $7,200.00 leaving a deficiency balance of $4,712.58 plus interest and attorney fees. In Count 2 the defendant was alleged to be indebted to the plaintiff for $219.26 on open account.

The defendant answered denying any indebtedness and set out an affirmative defense, accord and satisfaction. The case came on for trial at which a directed verdict was entered for the plaintiff.

On appeal by the defendant to this court we must consider the question-whether the evidence demanded a verdict for the plaintiff. In brief, was there any evidence of accord and satisfaction. Held:

1. The trial judge in directing a verdict for the plaintiff stated: 'In this contract of sales, the contract itself provided that any changes in the contract must be in writing. The plea of Accord and Satisfaction by the Defendant was not in writing and there was no evidence as to a legal plea of Accord and Satisfaction.'

The trial judge found that there was no written plea of accord and satisfaction. However, the language contained in the defendant's response to the complaint was sufficient. See Section 8 of the Civil Practice Act (Code Ann. § 81A-108; Ga.L.1966, pp. 609, 619; 1967, pp. 226, 230). Even if this were not true it is well settled that, even absent a specific pleading, where accord and satisfaction is set out by evidence which is not objected to then the issue is before the court, the plaintiff having waived objection. Pin-Har Lumber Products, Inc. v. Reagin, 95 Ga.App. 364(2), 98 S.E.2d 41; Moody v. Nides Fin. Co., Inc., 115 Ga.App. 859, 861(4), 156 S.E.2d 310. See CPA § 15(b) (Code Ann. § 81A-115(b); Ga.L.1966, pp. 609, 627; 1968, pp. 1104, 1106; 1972, pp. 689, 694).

The plaintiff argues persuasively that in view of the language in the contract there could be no accord and satisfaction where there was no written agreement concerning such matter introduced into evidence. The language in the contract might serve to prevent any parol changes or modifications of that contract. It did not purport to control any new or subsequent agreements. Even if the contract provides it may not be changed except by writing, parties may subsequently by mutual consent enter into new agreement at variance with the other. Bailey v. Martin, 101 Ga.App. 63, 67, 112 S.E.2d 807.

The language of Code § 20-1201 conclusively establishes that an accord and satisfaction, such as here, falls within the latter category. It reads: '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.' (Emphasis supplied.) There is nothing to prevent an accord and satisfaction resulting from an oral transaction. Johnson v. Commercial Credit Corp., 117 Ga.App. 131, 159 S.E.2d 290; Brantley Co. v. Lee, 106 Ga. 313, 316(2), 32 S.E. 101. See also Planters Cotton Oil Co. v. Bell, 54 Ga.App. 433(1), 188 S.E. 41; Moody v. Nides Fin. Co., 115 Ga.App. 859(3), 156 S.E.2d 310.

2. 'While the debtor in a security transaction has no right to surrender the collateral in satisfaction of the debt, yet if the creditor accepts surrender or effects a repossession under circumstances that amount to an accord and satisfaction the debtor is entitled to the advantage of it.' Moody v. Nides Fin. Co., 115 Ga.App. 859(2), 156 S.E.2d 310, supra. Accord: Gibson v. Filter Queen Co., 109 Ga.App. 650, 136 S.E.2d 922. See Bradford v. Lindsey Chevrolet Co., 117 Ga.App. 781, 782(2), 161 S.E.2d 904, 906, and cases therein cited, which held: 'The action of the holder in legally repossessing the security under a conditional sale contract, the retention of the same without sale and without excuse for not selling, and without demand for payment of the contract, for a period of approximately 50 days before suit on the contract and for over 16 months from the time of filing suit to the time of trial constituted a rescission and satisfaction of the contract and no recovery could be had thereon.' The question here arises as to whether there was an unreasonable delay so as to constitute a rescission or whether the repossession was for the purpose of sale under the terms of the contract or for some other purpose in which case there also may be a rescission. Hargett v. Muscogee Bank, 32 Ga.App. 701(5), 124 S.E. 541; Southern Auto. Fin. Co. v. Chambers, 65 Ga.App. 259, 264, 15 S.E.2d 903; Blevins Aircraft Corp. v. Gardner, 66 Ga.App. 843, 846, 19 S.E.2d 350.

In Barnes v. Reliable Tractor Company, 117 Ga.App. 777, 161 S.E.2d 918, involving the grant of summary judgment this court...