Opinion
35817.
DECIDED SEPTEMBER 30, 1955. REHEARING DENIED OCTOBER 19, 1955.
Damages. Before Judge Humphrey. Jefferson Superior Court. May 13, 1955.
Olin B. Cannon, Oliver, Davis Maner, for plaintiff in error.
Price, Spivey Carlton, contra.
The court did not err in overruling the demurrer or in directing a verdict for the defendant.
DECIDED SEPTEMBER 30, 1955 — REHEARING DENIED OCTOBER 19, 1955.
At the November term, 1954, W. G. Collins (hereinafter called the plaintiff), filed suit in the Superior Court of Jefferson County against the Louisville Wadley Railroad Company (hereinafter called the defendant), to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. The defendant filed its answer in which it rested the defense upon the theory that by contract the plaintiff and the defendant had fully settled the question of compensation. The plaintiff demurred to the plea and the court overruled the same. Thereafter the defendant, by amendment, added a paragraph numbered 36 in which paragraph 36 of the original answer was stricken. Paragraph 36 as amended reads: "That said plaintiff freely and eagerly entered into said agreement for settlement, and agreed that the voucher paying him said sum might be mailed to him at his address in LaGrange, Georgia, within the reasonably short time required for the voucher to be approved and issued by the treasurer in the usual course of such remittances which required a few days. On August 21, 1953, a voucher in said amount, No. B210, made payable to the plaintiff, was mailed from the office of the treasurer in the United States Post Office in Savannah, Georgia, by placing the same in a properly addressed and stamped envelope to Mr. W. G. Collins, 102 Johnson Street, LaGrange, Georgia. Said envelope containing said voucher arrived at the U.S. Post Office in LaGrange, Georgia, on or about August 23, 1953, and receipt of same by plaintiff was refused, the U.S. Post Office in LaGrange placing the entry on the envelope `Refused' and returning same to the office of the treasurer of the defendant company, said refused voucher being received back on August 26, 1953, all of which was within a week of the signing of said settlement agreement as aforesaid." This paragraph set out somewhat in detail a portion of the settlement contract between the parties. We think it well to set forth the entire contract between the parties as follows: "Dublin, Ga., August 19, 1953. Louisville Wadley Railroad Company: To: W. G. Collins, Dr.: For, and in full release, discharge, satisfaction and compromise of all claims, demands or cause of action, directly or indirectly, arising from or growing out of accident which occurred January 9, 1953, near 1 M. P. around 8:00 P. M. which resulted in a broken right leg. (1/2 of $1948.45 — earnings made by regular conductor January 9th through August 15, 1953 — $974.23. Approved: D.C. Rogers, President and General Manager.
"Release: Received of Louisville Wadley Railroad Company $974.23 in full for the above account and in consideration of said payment ... I hereby compromise said claim, and acquit, discharge, and release said company and other persons or companies that may be liable therefor, their agent, officers, and other employees of and from any and all liability for said accident and injury or any results, direct or indirect, arising therefrom, and acknowledge full accord and satisfaction therefor. And I hereby expressly state that the above consideration is in full for this release, and that there is no understanding or agreement of any kind for any further or future consideration whatsoever, implied, expected or to come to me in money, employment or otherwise. This 19th day of August, 1953. [Signed] W. G. Collins. Witnesses: Holt T. Michael, E. E. Dowling. (Seal Affixed)."
After overruling the defendant's demurrer the court ordered the case to trial. The plaintiff assumed the burden of proof, thereby admitting a prima facie case by admitting the signing of the release agreement. After evidence was introduced and after argument, the court directed a verdict for the defendant on the issue presented by the plea in the amount for which suit was brought. There was no motion for new trial. The plaintiff duly presented his bill of exceptions and brought the case to this court for review on a question of law only.
1. It is our opinion that paragraph 36 of the amended plea of settlement is a general demurrer, and the court did not err in overruling it. We think the amendment is allowable because it merely alleged facts in explanation of certain terms in the contract. We do not think the question of the general demurrer to the petition before amendment is before this court for the reason that it must be treated as abandoned, since it was not renewed and insisted upon after amendment. See General Accident, Fire c. Corp. v. Way, 20 Ga. App. 106 (2) ( 92 S.E. 650); Mauldin v. Mauldin, 25 Ga. App. 743 (2) ( 105 S.E. 252); and Howard v. Allgood, 143 Ga. 550 (16) ( 85 S.E. 757).
We might state here that, when the plaintiff assumed the burden of proof by admitting a prima facie case, the court in a colloquy with counsel stated that in assuming the burden of proof the defendant would have to prove that the settlement contract was procured by fraud. There is no evidence or argument to the effect that any fraud was perpetrated on the defendant. It induced the signing of the settlement contract.
2. The plaintiff relies for a reversal on two contentions: (a) That the agreement between the parties was such that to be enforceable the money should have been paid simultaneously by the defendant to the plaintiff when the instrument of settlement was signed. In our opinion this proposition is not tenable under the record in this case. By evidence introduced under the amended plea of the plaintiff the payment was to be made by the defendant to the plaintiff by check from the office of the railroad company at Savannah. The check was forwarded to the plaintiff within three days after the agreement was signed. The plaintiff refused the check for the reason that he did not get his money in accordance with the settlement agreement, which was due to his own fault. Counsel for the plaintiff call our attention to numerous cases to the effect that in accord and satisfaction cases the money must be paid simultaneously. The cases cited deal with the principles of law that there is no agreement, as here, to pay it at some future time.
(b) The other contention on which the plaintiff relies for reversal is that the agreement is not founded on a valid consideration. The record reveals that the consideration in the instant case is in part a compromise of a disputed unliquidated claim. Code § 20-1205 provides as follows: "A compromise or mutual accord and satisfaction is binding on both parties." In City Electric Ry. Co. v. Floyd County, 115 Ga. 655, 656 ( 42 S.E. 45), the court said: "If, as contended by the plaintiff in error, this contract was a nudum pactum, then the judgment of the court below was wrong; on the other hand, if this contract was based upon a sufficient consideration, then that judgment was right ... After the previously existing controversy between these parties had been compromised and settled, it mattered not which side thereof was right in its contentions; for the compromise and settlement of the dispute was a sufficient consideration for the agreement of the railroad company to pay the stipulated annual sum for its use of the bridges ... The parties asserted conflicting claims, depending upon a question of law, and these claims were compromised and settled by the contract now under consideration." See Hume v. Davison-Paxon Co., 57 Ga. App. 289 ( 195 S.E. 318); Segars v. City of Cornelia, 60 Ga. App. 457, 459 (2) ( 4 S.E.2d 60); Pesso v. Poulos, 74 Ga. App. 288 (1) ( 39 S.E. 702); Hall v. Beavers, 78 Ga. App. 722 ( 51 S.E.2d 879); Morris v. Munroe, 30 Ga. 630; Littlegreen v. Gardner, 208 Ga. 523 (3) ( 67 S.E.2d 713). In Tyson v. Woodruff, 108 Ga. 368, 372 ( 33 S.E. 981) the court said: "The law favors a settlement of differences and a compromise of disputed claims between parties. It thus saves the time, expense and trouble of litigation. It matters not if one party be right and the other wrong touching the validity of the original claim. The real consideration is in bringing about a settlement, preventing further annoyance, uncertainty and doubt, and to avoid, it may be, the uncertain result of a vexatious, troublesome and expensive litigation. As far as our investigation has extended the authorities are uniform and unbroken to the effect that when there is an honest difference of opinion between parties touching a disputed claim, and especially if the difference is of such a nature as to render it at all doubtful as to who is correct, any settlement or compromise of these differences will be enforced by the courts, and neither party will be allowed to defend by showing that he was right in his original contention. * * * Indeed, if any other rule prevailed, settlement or compromise of disputes and differences would amount to absolutely nothing; for in the event of a suit based upon the contract of settlement, either party could go behind that agreement, set up defenses to the original claim, and contend that there was really no consideration for the compromise." In Riley Co. v. London Guaranty c. Co., 27 Ga. App. 686 ( 109 S.E. 676), this court said: "All claims whether disputed or undisputed may furnish the subject matter of an agreement in accord and satisfaction, provided such agreement, like all other contracts, is supported by a consideration. When such a valid plea is proved as laid the rights of the creditor are controlled thereby. a. Where the amount of a claim is unliquidated the mere adjustment of such a bona fide dispute by the expressed terms of a new agreement will of itself afford a valid consideration sufficient to render the new agreement binding, and this would be true whether the new agreement had been actually performed or not. Civil Code (1910) Sec. 4326, 4328." (Italics ours.) In Bridges v. Shirling, 26 Ga. App. 279 (4) ( 105 S.E. 862) this court said: "Where an executed act, as the payment of money, is recited as the consideration for a contract, the contract is not rendered invalid by proof that the consideration was not actually executed by the payment of the money." See also Sampson v. McRae, 29 Ga. App. 690 (5) ( 116 S.E. 651) to the same effect.
The court did not err in overruling the demurrer. On the issue formed by the plea, the court did not err in directing a verdict for the defendant.
Judgment affirmed. Townsend and Carlisle, JJ., concur.