Opinion
46924.
ARGUED FEBRUARY 1, 1972.
DECIDED FEBRUARY 29, 1972. REHEARING DENIED MARCH 17, 1972.
Action on account. Fulton Civil Court. Before Judge Camp.
Fine Block, Craig R. Goodman, for appellant.
Barwick, Bentley Binford, Gilbert B. Meredith, M. Cook Barwick, for appellee.
Defendant in a suit on account appeals from the dismissal of his counterclaim for interest on a note executed by the plaintiff in 1965 and on which the principal was fully paid in 1969.
While the undisputed evidence shows that the parties arrived at an accord and satisfaction, this affirmative defense was neither pleaded nor raised by written motion. See Rivers v. Cole Corp., 209 Ga. 406 ( 73 S.E.2d 196); Thompson v. Hecht, 110 Ga. App. 505 ( 139 S.E.2d 126); Catalina, Inc. v. Woodward, 124 Ga. App. 26 ( 182 S.E.2d 921); Phillips v. State Farm Mut. Auto Ins. Co., 121 Ga. App. 342 ( 173 S.E.2d 723). For this reason, the trial court erred in dismissing the counterclaim.
Judgment reversed. Quillian, J., concurs. Pannell, J., concurs specially.
ARGUED FEBRUARY 1, 1972 — DECIDED FEBRUARY 29, 1972 — REHEARING DENIED MARCH 17, 1972.
I concur in the judgment of reversal under the authority of Standard Accident Ins. Co. v. Ingalls Iron Works, 109 Ga. App. 574 ( 136 S.E.2d 505), decided under the summary judgment procedure which has been neither overruled, criticized, disapproved or distinguished by this court.