Thompson v. Mallory Bros. & Co.

Little, J. Only one question is presented for consideration by the record in this case. The plaintiff in error (who was the defendant below) at the appearance term of the suit, October term, 1896, answered the petition which had been filed to recover judgment on a promissory note, dated April 15, 1890, for the principal sum of $148.66, and averred that the note “has been fully settled and satisfied by the giving of another note which plaintiffs accepted from defendant 'in lieu of and in full satisfaction of said note, the subject of this suit ” ; and proceeded to describe the note so given and accepted. At the October adjourned term, 1897, and during the trial of the case, the defendant offered an amendment to his answer, averring, in substance, that: “ On the first day of December, 1890, in the city of Macon, this defendant paid to the plaintiffs the sum of $148.66 in full payment of the note sued on,” etc. The court refused to allow the amendment; and we are to determine whether the judgment refusing to allow such amendment was erroneous. It is insisted by counsel for plaintiff in error, that the original answer filed by the defendant was in effect a plea of payment and the amendment did not set up any new facts or defense of which notice was not given by the original plea. If this contention is sound, the amendment should have been allowed; if, on the contrary, the original plea was not that of payment, or if new facts or defense, notice of which was not given by the original plea or answer, are set up by the amendment, then it was properly refused. Treating the original answer as a plea technically, it was not a plea of payment, but that of 686 accord and satisfaction, which is defined to be “the substitution of another agreement between the parties in satisfaction of a former one and an execution of the latter agreement.” 2 Parsons on Contracts, 799; Civil Code, § 3732. However, it is not necessary under our system of pleading to determine whether, treated as a plea, the original answer would be classed as a plea of payment or of accord and satisfaction. The plaintiffs below alleged that Thompson was indebted to them on a promissory note. Answering this petition, Thompson denied this right of the plaintiffs to recover on the note; he denied the right of recovery, because of the fact that before the institution of the suit he had given to the plaintiffs another note which the latter had accepted “in lieu and in full satisfaction” of the note sued on. The pleadings reduced the case to one issue: that is, did Thompson, as averred, give the plaintiffs a new note, and did the latter accept the same in satisfaction of the note sued on? And so the contention between the parties stood at the time the case went on trial, November 29, 1897. The seventh section of the act of 1895 (Acts 1895, p. 44, Civil Code, § 5057) declares, that after the time allowed for answer has expired “the defendant shall not in any case by amendment set' up any new facts or defense of which notice was not given by the original plea or answer, unless, at the time of filing such amended plea or answer containing the new matter, he shall attach an affidavit that at the time of filing the original plea or answer he did not have notice or knowledge of the new facts or defense set out in the amended plea or answer.” In this case no subh affidavit was attached to the amended answer. The fact set up by the original answer was, that the defendant had made and delivered a new note which was accepted by the plaintiffs in satisfaction of the one on which they sought a recovery. The notice which the plaintiffs then received was confined to this fact. The amended answer recited that in December, 1890, the defendant had paid plaintiffs one hundred and forty-eight and 66/100 dollars in full payment of the note sued on. In the one case he averred that he had satisfied the note by giving a new promise to pay; in the other, that at a given time and place he had paid to plaintiffs a given 687 sum of money in full payment of the note. The statute contemplates that the defendant shall not set up any new facts by way of amendment, of which he had knowledge at the time he •answered, unless notice of such facts be given in the original answer. Necessarily the plaintiff's could have had no notice that the defendant relied on showing the fact that he had on a given day paid to plaintiffs the amount of the note in money, in full settlement of the same, from the averment that before the institution of the suit he had given to.the plaintiffs another promissory note in lieu and in satisfaction of the one on which •suit was brought. The facts stated in the original answer are different from the facts stated in the amendment offered. The latter changes the issue made by the former, and can not be ■allowed, under existing law, in the absence of the required affidavit. Judgment affirmed. All the Justices concurring.