Gay v. American Oil Co., 115 Ga. App. 18 ( 153 S.E.2d 612) is also a case involving an attempted lease forfeiture where the landlord retained a rent check, and follows Pan-American Life Ins. Co. v. Carter, supra, merely holding that retention of the check amounted to a waiver of the forfeiture. In Holton Dodge, Inc. v. Baird, 118 Ga. App. 316 ( 163 S.E.2d 346) the plaintiff did in fact execute a written settlement and accept a draft in payment thereof, and the case holds that after these acts she cannot rescind the settlement in the absence of fraud practiced upon her. Baggett v. Chavous, 107 Ga. App. 642 ( 131 S.E.2d 109) holds that retention of a check for an unreasonable time without cashing and without indicating a refusal to accept it as an accord and satisfaction will constitute an acceptance. In Gibson v. Filter Queen Co., 109 Ga. App. 650 ( 136 S.E.2d 922) an accord and satisfaction was accomplished where an agreement between the vendee and vendor to rescind the contract was executed by the vendee returning the property to the vendor.
Dixie Belle Mills, Inc. v. Specialty Machine Co., 217 Ga. 104, 107 ( 120 S.E.2d 771). See also Rivers v. Cole Corp., 209 Ga. 406 ( 73 S.E.2d 196); Baggett v. Chavous, 107 Ga. App. 642 ( 131 S.E.2d 109). "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."
(e) An accord and satisfaction resulted when appellant endorsed the check and obtained the proceeds. Ryan v. Progressive Retailer Pub. Co., 16 Ga. App. 83 ( 84 S.E. 834); Askew v. Goldsmith, 60 Ga. App. 718 ( 4 S.E.2d 697); Blalock v. Millers Nat. Ins. Co., 67 Ga. App. 469 ( 21 S.E.2d 131); Duncan v. Crisp, 68 Ga. App. 498 ( 23 S.E.2d 515); Hatfield v. Colonial Life c. Ins Co., 102 Ga. App. 630 ( 116 S.E.2d 900); Thompson v. Hecht, 110 Ga. App. 505 ( 139 S.E.2d 126); Benefield v. Malone, 112 Ga. App. 408 ( 145 S.E.2d 732); Baggett v. Chavous, 107 Ga. App. 642 (1) ( 131 S.E.2d 109); Hamilton v. Stewart, 105 Ga. 300 ( 31 S.E. 184); s. c., 108 Ga. 472 ( 34 S.E. 123); Holton Dodge Inc. v. Baird, 118 Ga. App. 316 (1, 2) ( 163 S.E.2d 346); Townsend v. Lewis, 122 Ga. App. 135 ( 176 S.E.2d 457); Rivers v. Cole Corp., 209 Ga. 406, 408 ( 73 S.E.2d 196). No ground for avoiding the release appears, even if this action had been in equity.
1. "It is now the law of this State that if a debtor remits to the creditor a sum of money, less than the amount actually due, upon the condition, either express or implied, that it is in satisfaction of the creditor's claim, and the latter accepts and retains the money, an accord and satisfaction results, and this is true whether the demand be liquidated or unliquidated, disputed or undisputed." Dixie Belle Mills v. Specialty Machine Co., 217 Ga. 104, 107 ( 120 S.E.2d 771); Rivers v. Cole Corp., 209 Ga. 406 ( 73 S.E.2d 196); Baggett v. Chavous, 107 Ga. App. 642 ( 131 S.E.2d 109); Thompson v. Hecht, 110 Ga. App. 505, 506 ( 139 S.E.2d 126). See Code ยง 20-1204.
Rivers v. Cole Corp., 209 Ga. 406 ( 73 S.E.2d 196); Gibson v. Filter Queen Co., 109 Ga. App. 650 ( 136 S.E.2d 922). We hold this to be a retention for an unreasonable time as a matter of law. Conceding that the letter of January 28 was written within a reasonable time after receipt of the check and that if the check had been returned with the letter there would have been no accord and satisfaction, it cannot follow that there was none when the check was retained for an additional 10 months before filing suit and continues in the plaintiff's hands even now. Hamilton Co. v. Stewart, 108 Ga. 472 ( 34 S.E. 123); Baggett v. Chavous, 107 Ga. App. 642 ( 131 S.E.2d 109); Gay v. American Oil Co., 115 Ga. App. 18 ( 153 S.E.2d 612). And see Annotation on Settlement by Retention of Check in 13 ALR2d 736. If there was no intention to accept it, the check should have been returned with promptness.
The plaintiff's mere retention of the check issued to her for $198.64, on January 6, 1964, until she filed suit on January 23, 1964, did not constitute an accord and satisfaction of her claim. Colfax Gin Co. v. Buckeye Cotton Oil Co., 24 Ga. App. 610, 611 ( 101 S.E. 697); Cf. Baggett v. Chavous, 107 Ga. App. 642 ( 131 S.E.2d 109). 3. The special grounds of the motion for new trial contend that the admission of evidence that the plaintiff had agreed to accept payment to her of $351.68 in settlement was error because it was contrary to the terms of the written agreement of release and sought to change it by parol evidence.
See Frank v. Frost, 170 Wis. 353, 174 N.W. 911 (14 weeks); American Nat. Bank v. Bradford, 28 Tenn. App. 239, 188 S.W.2d 971 (90 days); Western Pac. Land Co. v. Wilson, 19 Cal.App. 338, 125 P. 1076 (30 days); Meier v. Texas Co., 168 F. Supp. 119 (E.D.Pa. 1958) (7 months). Compare Baggett v. Chavous, 107 Ga. App. 642, 131 S.E.2d 109 (22 months). See Chesapeake Industries v. Brandt, Sup., 137 N.Y.S.2d 195 (several months); Danks v. Kropp Steel Co., 21 Ill. App.2d 252, 157 N.E.2d 694 (2 years).
Olson v. Northwestern Furniture Co., 6 Wis.2d 178, 94 N.W.2d 179 (1959). Dodd v. Polack, 63 Wn.2d 828, 389 P.2d 289 (1964); Mitchell v. Certified Finance, Inc., 183 Kan. 787, 332 P.2d 516 (1958); Platt v. Penetryn System, Inc., 151 Ohio St. 451, 86 N.E.2d 600 (1949); Hutchinson v. Culbertson, 161 Pa. Super. 519, 55 A.2d 567 (1947); Baggett v. Chavous, 107 Ga. App. 642, 131 S.E.2d 109 (1963); Fidelity and Casualty Co. of New York v. Nello L. Teer Co., 250 N.C. 547, 109 S.E.2d 171 (1959); Rivers v. Cole Corp., 209 Ga. 406, 73 S.E.2d 196 (1952); Rycade Oil Corporation v. Lasater (Tex.Civ.App.) 375 S.W.2d 556 (1964); Hyman Investment Co. v. Tomerlin (Tex.Civ.App.) 326 S.W.2d 607 (1959); 6 Williston on Contracts, Rev'd Ed., ยง 1854. The portion of instruction No. 10 complained of by plaintiffs was as follows:
See also 6 Williston, Contracts (rev. ed.), pp. 5213-5216, sec. 1854. Anno. 13 A.L.R.2d 736, considers cases where a check is received and not cashed or otherwise used. Cases holding that retention of a check for a particular length of time is unreasonable are: Curran v. Bray Wood Heel Co., Inc. (1949), 116 Vt. 21, 68 A.2d 712 [sixteen months before suit and three months after]; Seidman v. Chicago Eye Shield Co. (1932), 267 Ill. App. 77 [over six years]; Day-Luellwitz Lumber Co. v. Serrell (1913), 177 Ill. App.? 30 [bank draft held three and one-half months]; Donovan v. Maloney (1912), 26 Del. (3 Boyce) 453, 84 A. 1032 [six months]; Warren v. New York Life Ins. Co. (1936), 40 N.M. 253, 58 P.2d 1175 [six months]; Bloomquist v. Johnson (1903), 107 Ill. App. 154 [held a "few weeks"]; Baggett v. Chavous (1963), 107 Ga. App. 642, 131 S.E.2d 109 [twenty-two months]. Cases which have held the retention not unreasonable or for the jury are: Siegel v. Cohen (1918), 210 Ill. App. 338 [twelve days]; Patten v. Lynett (1909), 133 App. Div. 764, 118 N.Y. Supp. 185 [one check about a month and another about six weeks]; American Nat. Bank v. Bradford (1945), 28 Tenn. App. 239, 188 S.W.2d 971 [three months]; Meier v. Texas Co. (D.C. Pa. 1958), 168 F. Supp. 119 [seven months]; Chesapeake Industries v. Brandt (1954), 137 N.Y.Supp.2d 195 [five months].