Nelson, Farber & Franson, Inc. v. Ben Hyman & Co.

Hall, Presiding Judge. Defendant in a suit on account appeals from the dismissal of his counterclaim for interest on a note executed by the plaintiff in 1965 and on which the principal was fully paid in 1969. While the undisputed evidence shows that the parties arrived at an accord and satisfaction, this affirmative defense was neither pleaded nor raised by written motion. See Rivers v. Cole Corp., 209 Ga. 406 (73 SE2d 196); Thompson v. Hecht, 110 Ga. App. 505 (139 SE2d 126); Catalina, Inc. v. Woodward, 124 Ga. App. 26 (182 SE2d 921); Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342 (173 SE2d 723). For this reason, the trial court erred in dismissing the counterclaim. Judgment reversed. Quillian, J., concurs. Pannell, J., concurs specially.