Virginia Lumber Corp. v. Williamson Co.

Jenkins, P. J. 1. It is the general rule that where any part of a claim is in good faith disputed, a payment made and accepted in settlement of a bona fide dispute and in discharge of the whole indebtedness is binding accordingly; but this rule could not apply where a payment is not rendered or accepted as in discharge of the whole indebtedness, but is merely a partial payment intended to be credited upon the recognized indebtedness, even though at the time that such payment on the admitted indebtedness is made and accepted the defendant, as maker and acceptor of the draft sued on, accompanied such payment with a statement of account, setting forth two credits claimed by it growing out of the previous transaction, which, together with the amount then paid, left a balance due in the amount of the new acceptance with deferred maturity date then tendered. Such a partial payment admitted to be due was not expressly or impliedly coupled with a condition as to the allowance of the credits then claimed or the acceptance of the tendered bill of exchange maturing at a later date. Since it appears, without dispute, that the plaintiff promptly declined to accept the tendered bill of exchange representing the balance claimed by the defendant to be due and maturing at a deferred date, the court did not err in ruling against the defendant’s claim of accord and satisfaction. 2. This was a suit on an accepted bill of exchange. The defendant pleaded that the amount sued for was not due or owing, because of an alleged ” accord and satisfaction, and further set forth, by way of counterclaim, damages alleged to have accrued on account of the plaintiff’s- breach of an alleged contract for the purchase of certain cross-ties. The court directed a verdict in favor of the plaintiff for the amount of the acceptance, less certain admitted credits, and the defendant excepted. With reference to the counterclaim by the seller for damages on account of the alleged failure of the purchaser to take certain cross-ties, the question hinges upon whether or not there had been a valid agreement between the parties for thfi purchase thereof, and, if so, whether, under the undisputed evidence, there had been a breach by the purchaser on account of its failure to accept cross-ties as tendered in accordance with the terms of such agreement. The parties had originally entered into an oral agreement for the purchase of six to eight thousand cross-ties. Subsequently and before any cross-ties were shipped, an order, designated as “order No. 108,” for from twenty to twenty-five thousand cross-ties, of specified sizes at named prices, was written and signed by the purchaser and mailed to the seller. On receipt of this order the seller, by letter, called the purchaser’s attention to the fact that the previous oral agreement covered only six to eight thousand cross-ties, instead of twenty to twenty-five thousand. Subsequently, in a telephone conversation, the seller asked the purchaser what to do with the signed order, and the buyer replied “go ahead and keep it.” Thereafter the purchaser gave wrritten instructions for shipment of the ties, referring therein to “order No. 108.” It indisputably appears that more than ten thousand cross-ties were delivered, accepted, and paid for, and, according to the [619] testimony of the seller, the remaining 10,000 ties, meeting the specifications of “order No. 108,” were tendered to the buyer and were rejected, to the seller’s injury and damage in the amount Claimed. Held: Where a contract is such as, under the statute of frauds, must be in writing, and there is nothing to take it out of the provisions of that statute, the writing, in order to evidence mutuality, so as to render the agreement binding, must be “signed by the party sought to be charged therewith or some person by him lawfully authorized” (Civil Code (1910), § 3222), and must also be signed or otherwise accepted by the opposite party, the object of the signature being to show mutuality or assent. However, except in cases where by the terms of the instrument itself it is required, as a condition to its validity, that both parties shall sign, when the party sought to be charged has signed, mutuality may be "inferred by whole or part performance of an entire contract by the opposite party. Aspironal Laboratories Inc. v. Rosenblatt, 34 Ga. App. 255 (129 S. E. 140); Retailers Service Bureau v. Newman, Frierson & McEver Co., 40 Ga. App. 185 (149 S. E. 89). This is true since such whole or partial performance of a contract “will satisfy the requisites both of mutuality and of the statute of frauds.” Fontaine v. Baxley, 90 Ga. 416, 425 (17 S. E. 1015). Accordingly, since the evidence was in conflict as to the character and grade of the cross-ties tendered for delivery, and since it can not be said as a matter of law that the contract as sued on by the defendant seller in its counterclaim was unilateral in that the agreement was signed by the opposite party and partly performed by the seller by shipments specifically made thereunder, it was error for the court to direct a verdict in favor of the plaintiff and against the counterclaim of the defendant, the seller having further testified to compliance with the provisions of the Civil Code (1910), § 4131 (2), with reference to the disposition of the rejected ties. Decided December 18, 1931. Rehearing denied Eebruary 11, 1932. Gobb & Bright, F. S. Mackall, for plaintiffs in error. Hitch, Denmarh & Lovett, B. W. McDuffee, contra. 3. Since the written agreement specifically provided that the ties sold should meet the specifications of the New York Central Lines, these specifications were properly admitted in evidence upon proof submitted that the writing offered contained “the present New York Central specifications.” Judgment reversed. Stephens and Bell, JJ., concur.