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.
The basis for the claim of accord and satisfaction is the information contained on these documents and as argued by defendant's counsel "these drafts were received, accepted, endorsed and cashed by Continental Forest Products, Inc., on behalf of both plaintiffs." Unfortunately for the movant, the absence of these documents from the record fails to establish an accord and satisfaction within the meaning of Mullinax v. Shaw, 143 Ga. App. 657, 659-660 (1) ( 239 S.E.2d 547), citing Holton Dodge v. Baird, 118 Ga. App. 316, 317 (1) (2) ( 163 S.E.2d 346). Accordingly, we are unable to consider further the issue of accord and satisfaction in view of the absence of this evidence. The evidence does show that three checks or drafts were received and apparently cashed, in payment for certain items of the plaintiffs' claims, but we cannot determine if there has been a contract and a meeting of the minds with reference thereto.
[Cits.]" Holton Dodge, Inc. v. Baird, 118 Ga. App. 316, 317 (1) (2) ( 163 S.E.2d 346) (1968). "Where one who can read signs a contract without apprising himself of its contents, otherwise than by accepting representations made by the opposite party, with whom there exists no fiduciary or confidential relation, he can not defend an action based on it, or have it canceled or reformed, on the ground that it does not contain the contract actually made, unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent him from reading it."
Finally, they contended that a party is not entitled to relief against the gross and inexcusable negligence of signing his name to a plain and unambiguous written instrument, when no fraud, artifice or misrepresentation was employed to induce him to sign it, and when there is nothing to show that it did not embody the identical agreement which the other party actually intended to make. Holton Dodge, Inc. v. Baird, 118 Ga. App. 316, 318 ( 163 S.E.2d 346) (1968). We agree that the above contentions state correct principles of law.
(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.
Fulford v. Fulford, 225 Ga. 9, 16 ( 165 S.E.2d 848); Hale v. Lipham, 61 Ga. App. 191 ( 6 S.E.2d 115). The agreement here made is effective "as a settlement and release of all claims against the assured by such third-party claimant." National Dairy Products Corp. v. Southeastern Adjusters, 109 Ga. App. 838 ( 137 S.E.2d 554). Also, see Holton Dodge, Inc. v. Baird, 118 Ga. App. 316 ( 163 S.E.2d 346); Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342 ( 173 S.E.2d 723); Townsend v. Lewis, 122 Ga. App. 135 ( 176 S.E.2d 457); Edwards v. Fincher, 122 Ga. App. 176 ( 176 S.E.2d 505). Judgment affirmed. Deen and Clark, JJ., concur.
The mistake of a party to a settlement contract will not render the contract invalid when the mistake was the result of that party's negligence. See Code ยงยง 37-116, 37-211; Dyar v. Walton, Whann Co., 79 Ga. 466, 470 ( 7 S.E. 220); Holton Dodge, Inc. v. Baird, 118 Ga. App. 316, 317 ( 163 S.E.2d 346). However, it is generally agreed that a settlement contract based on a mistake of material fact, where the mistake was not due to the negligence of the party claiming mistake and where it did not pertain to a fact in dispute, may be invalidated on that ground like other agreements.