Opinion
17961.
ARGUED SEPTEMBER 8, 1952.
DECIDED OCTOBER 15, 1952. REHEARING DENIED NOVEMBER 13, 1952.
Specific performance. Before Judge Pratt. Gwinnett Superior Court. June 2, 1952.
J. V. Poole, for plaintiff in error.
W. L. Nix, contra.
1. The trial court did not err in granting a motion of the defendant that the defense of settlement be tried before any other issue.
2. The trial court did not err in directing a verdict for the defendant.
No. 17961. ARGUED SEPTEMBER 8, 1952 — DECIDED OCTOBER 15, 1952 — REHEARING DENIED NOVEMBER 13, 1952.
J. W. Coggins filed in Gwinnett Superior Court, against H. P. Edmonds, a petition which as amended alleged substantially the following: In September, 1916, the petitioner executed warranty deeds, conveying 160 acres of land to the defendant in settlement of an indebtedness of $8280. Shortly thereafter, the parties, who were brothers-in-law, entered into a parol contract by the terms of which the petitioner was given the privilege of repaying the $8280, and upon this being done the defendant was to reconvey the land to the petitioner. The petitioner has repaid the indebtedness to the defendant, but the latter refuses to recovery the land. The petitioner prayed for specific performance of the oral contract under the terms of which the defendant was to reconvey the land.
The defendant denied in his answer that the money had been repaid, and averred: The petitioner filed a prior suit against the defendant, in which he sought a recovery upon the identical cause of action. The prior suit was referred to an auditor. However, before the case was heard the petitioner and the defendant had a full and complete settlement of all questions involved in the present action, as well as all other matters or claims between the parties, and the settlement, accord and satisfaction was duly consummated in writing.
When the present case came on for trial, the court allowed the defendant to try the issue of settlement before a jury. The evidence on this hearing developed the following facts: The petitioner admitted on cross-examination that he had signed the following paper on October 31, 1949: "Georgia, Gwinnett County. I have this day received of . . [the defendant] 50 acres of land, deed to be executed to me in full and complete settlement and satisfaction of all claims or demands I have against him as shown by my suit Number 2979, now pending in the Superior Court of said County, . . and said suit is to be dismissed. It is the purpose and intent of this settlement that all matters between the parties, whether included in said suit or not, is finally and fully adjudicated, and I now disclaim any interest whatsoever in any of the lands mentioned in said suit, or described therein, and aver that the fee-simple title is in" the defendant. The petitioner also admitted that he had accepted a deed to the 50 acres and, after obtaining the consent of counsel who represented him in the prior suit, paid the costs and dismissed the action. In the prior suit, the petitioner sought the recovery of a money judgment against the defendant, with an alternative decree for the 160 acres. The petitioner testified that he was 84 years old, and had prostate gland trouble. He casually read the paper, but did not comprehend what the effect of it was. There had been no discussion between the parties as to a settlement, and he would not have signed the paper if he had comprehended that he was accepting the 50 acres in settlement of his claim to the 160 acres.
After the introduction of evidence regarding the issue of settlement, the court directed a verdict for the defendant. The court then made the verdict of the jury the judgment of the court, and dismissed the action. The petitioner's amended motion for a new trial was overruled, and the case comes to this court for review upon his exceptions to that judgment.
1. When the case came on for trial, counsel for the defendant moved that the defense of settlement be tried before any other issue. Counsel for the petitioner objected on the grounds that there was no special plea involved in the case, and that the defendant's averment as to a settlement was part of his general answer and he could not try it before a special jury. The fifth special ground of the amended motion for new trial complains that the court erred in allowing the plea of settlement to be tried separately before a special jury.
"In all cases demurrer, pleas, and answer shall be disposed of in the order named." Code, § 81-1002. In Gamble v. Gamble, 204 Ga. 82 (2) ( 48 S.E.2d 540), it was held: "The trial court did not err in granting a motion of the defendants, that the defense of res judicata be tried before any other issue." By analogy the same principle would apply where a plea of settlement was contained as a part of the defendant's general answer, and, accordingly, the trial court did not err in granting a motion of the defendant that the defense of settlement be tried before any other issue.
2. The second and sixth special grounds complain that the court erred in directing a verdict for the defendant, because there was a conflict in the evidence as to the alleged settlement which should have been submitted to the jury.
"A compromise or mutual accord and satisfaction is binding on both parties." Code, § 20-1205.
The evidence, as disclosed by the foregoing statement of facts, showing the petitioner admitted that he had signed a paper which constituted a definite, certain, and unambiguous settlement of a prior suit involving the identical oral contract that is relied upon in this litigation, and that after obtaining the consent of counsel who represented him in the prior suit, he had paid the costs, and dismissed the prior suit, the trial court did not err in directing a verdict for the defendant. Code, § 110-104; Kapiloff v. Askin Stores, 202 Ga. 292 ( 42 S.E.2d 724), and cases cited.
In the light of the above rulings, it becomes unnecessary to pass upon other assignments of error.
Judgment affirmed. All the Justices concur.