Opinion
33565.
DECIDED JUNE 12, 1951.
Complaint on alimony contract; from Fulton Superior Court — Judge Moore. February 26, 1951.
Charles W. Bergman, for plaintiff.
Lindsay, Dorsey Hill, for defendant.
1. ( a) An agreement by a creditor to receive less than the amount of his debt may be pleaded as an accord and satisfaction where a bona fide dispute arises between the parties as to certain material terms of the original contract and where such subsequent agreement is actually executed by payment of the sum agreed upon. In an accord and satisfaction of a disputed claim it is not the merit of the contentions of either party which determines its validity to support such accord and satisfaction, its controlling factor being the bona fides of the debtor's contention, which as a general rule is a question of fact for the jury.
( b) Where, as here, the defendant's plea of rescission was stricken on demurrer, which judgment was not excepted to, the defendant was not precluded thereafter from amending his answer to set up a plea of accord and satisfaction, the matter being largely within the discretion of the trial judge and the pleas, while identical in certain respects, not being identical defenses. Further, the amendment set up new matter constituting a valid defense against the action.
( c) The right to amend being exceedingly broad, it is not error to allow an amendment to the defendant's answer after the time for answer has expired, although new defenses are set out therein, provided the new matter is not for the purpose of delay only. Code § 81-1310.
2. ( a) Where the issue to be decided is whether or not a bona fide dispute exists between the parties as the legal effect of a contract, it is not error to admit evidence as to the interpretation by the parties to it on the ground that such testimony seeks to vary the terms of a written instrument.
( b) Requests to charge not adjusted to the issues presented are properly refused.
( c) Portions of a charge setting out the contentions of the opposite party, fairly stated, are not objectionable on the ground that they confused or misled the jury, there being some evidence to support the contentions stated.
3. The verdict of the jury in favor of the defendant's plea being authorized by the evidence and having the approval of the trial court, will not be distributed by this court.
DECIDED JUNE 12, 1951.
Mrs. Nauman field suit against her former husband, B. L. McCoy Jr., on a contract to pay alimony under which the defendant was to pay her $150 a month for fifteen consecutive months. She alleged that the defendant had made payments in accordance with the contract for May, June, July and August, 1948, but none subsequently thereto, and that he owed her eleven installments or a total of $1650. The plaintiff attached a copy of the contract to her petition, paragraph 3 reading as follows: "B. L. McCoy Jr. agrees to pay Dorothy Hunt McCoy the sum of one hundred fifty ($150.00) dollars per month for fifteen (15) consecutive months, the first payment to be made on May 1, 1948 and similar payments on the first day of each consecutive month thereafter until fifteen (15) payments shall have been made."
The defendant's responsive pleadings, denominated an answer and special plea of rescission, admitted the jurisdiction of the court, the contract and a total of four payments thereunder (three of these, however, alleged to have been in excess of $150), but alleged that it was the intention of the parties "that the obligation to make payments should exist only so long as plaintiff should be single and unmarried and that in the event of the plaintiff's remarriage the obligation to make such payments should cease," and that the plaintiff had remarried in August, 1948, thereby terminating his obligation to continue payments. The plea of rescission alleged in substance that the defendant visited the plaintiff at her home on August 23, 1948; that the plaintiff told him she was about to marry Mr. Nauman, whereupon the defendant stated that "it had not been his intention and that he had not understood it to be the plaintiff's intention that payments of $150 per month required by the contract. . should continue in the event the plaintiff should remarry"; that the plaintiff stated that such had not in fact been her intention; that "plaintiff agreed that if defendant would pay to her the sum of $70 she would make no further claim upon him and would rescind and abandon all the terms of said contract"; that such payment had been made by agreement by defendant forgiving the plaintiff the payment of one month's rent on the apartment she was leasing from him, in the amount of $70.12, and that all the terms of said contract of rescission had been executed.
To this the plaintiff demurred generally on the grounds that the plea and answer attempted to vary by parole the terms of an unambiguous written contract; that all allegations as to the plaintiff's remarriage were immaterial and not germane to the cause of action; that the allegations as to rescission and abandonment of the contract were insufficient and nudum pactum, and that the allegations "did not constitute an accord and satisfaction or a rescission of the contract sued upon." The grounds of demurrer were sustained and the allegations attacked were stricken, leaving in the answer only the defendant's admission of the jurisdiction of the court, execution of the contract and payments thereunder, and a denial of the indebtedness sued upon.
On October 27, 1949, the same date the above demurrers were sustained, the defendant filed an amendment adding to his answer a plea of accord and satisfaction in which he alleged his visit to the plaintiff, his discovery of her forthcoming marriage, his statement that he did not consider himself obligated to make further alimony payments after such marriage, a resulting dispute between the plaintiff and the defendant as to whether his obligation to continue the alimony payments would cease on her remarriage, and an accord and settlement of the dispute by an agreement that the plaintiff would accept $70.12 in full satisfaction of her claims against the defendant under the contract, and an execution of this agreement by the payment of the sum of $70.12.
The plaintiff demurred to this amendment on the grounds that it was filed too late; that after the judgment on demurrer striking the original plea and answer there was not enough left to amend by; that it set up a new and distinct defense; that allegations as to the plaintiff's remarriage were immaterial, and that the allegations were insufficient in law to constitute a plea of accord and satisfaction. These demurrers were overruled. Special demurrers to the allegation that "thereupon a dispute arose" as being a conclusion of the pleader, and to the allegation of payment as vague and indefinite in not showing when the money was paid were sustained with leave to amend. By a second amendment in accordance with this ruling the defendant alleged that, as to the dispute, the defendant contended his obligation to make further payments under the contract would cease on the plaintiff's remarriage whereas the plaintiff contended it would not, and, as to its manner, payment was effected by forgiving the September installment of rent due the defendant by the plaintiff in the amount of $70.12. Demurrers were again renewed and the amendment attacked as insufficient to meet the previous rulings of the court, to show a bona fide dispute or to show an accord and satisfaction, and as attempting to engraft a new meaning upon a written contract. These demurrers were overruled and the plaintiff excepted pendente lite, which exceptions are contained in the bill of exceptions here.
Upon the trial of the case the jury was authorized to find facts substantially as follows: that the plaintiff and defendant had, shortly before their divorce, entered into the alimony contract sued upon, which contract had, however, never been made the judgment of the court; that as a part of this contract the plaintiff leased certain housing accommodations from the defendant for a monthly rental of $70.12; that the defendant had agreed to pay her $150 per month for fifteen months and had made these payments until her remarriage in August; that in discussing the marriage the defendant told the plaintiff is she certainly had not intended to continue alimony payments if she married someone else, to which she replied that she didn't either, but there it was in the contract; that she then stated she had a few small bills which she did not feel Gus Nauman should be obligated to pay and that if the defendant would pay those bills she would forget the contract; that it was agreed between the parties that the defendant would pay the bills, the method being that the defendant would forgive the plaintiff her September rent installment in the amount of $70.12 and that the plaintiff would obtain this amount of money from Gus Naumam, which he would then be expected to pay for the rent as her husband, and she would pay the bills with the rent money so obtained. The defendant thereafter considered the matter settled, made no demand and received no payment for the September rent from either the plaintiff or Nauman, and heard nothing further about the matter until he received a letter from the plaintiff's lawyer nine months later.
A verdict was returned for the defendant on his plea of accord and satisfaction. A motion for a new trial on the general grounds was filed and later amended by the addition of ten special grounds. The overruling of this motion is also assigned as error.
1-3. The plaintiff contends that, by not excepting to the order sustaining her demurrers to the answers and plea of rescission, the defendant allowed this ruling to become the law of the case. The defendant concedes, by brief of counsel, that this is true, but insists that, as the answer contained enough to amend by, he was entitled to file an amendment setting up a new and distinct plea. Deleting the portion of the answer thus stricken, there remain paragraphs admitting the jurisdiction of the court and execution of the contract, and also an allegation that the payments made were in excess of the contract requirements. Under Code § 81-1302 this constituted enough to amend by and since the order sustaining the demurrers to the first plea, whether considered as special or general, went only to the question of whether the pleas of rescission was good in law, we think the defendant was entitled to his amendment. Nor was the amendment filed too late. See, in this regard, Woodruff Mfg. Machinery Co. v. Griffin, 17 Ga. App. 529 ( 87 S.E. 808); Wynn v. Wynn, 109 Ga. 255 ( 34 S.E. 341); Williams v. Hays, 47 Ga. App. 97 ( 169 S.E. 704); Richardson v. Hairried, 202 Ga. 610, 614 ( 44 S.E.2d 237). That the defendant may set up new matter by amendment after the time allowed for answer has expired is specifically provided for by our Code § 81-1302, supra.
Nor was the amendment objectionable on the ground that the same matter had already been stricken by the court, for the reason that, although certain allegations of fact where common to both pleas, the amendment constituted a new defense of accord and satisfaction, as one element of which it set up as a consideration for the accord a bona fide dispute between the parties, an agreement and an execution of that agreement. See, in this regard, City Electric Railway Co. v. Floyd County, 115 Ga. 655 ( 42 S.E. 45); Armour Fertilizer Works v. Wynn Mercantile Co., 40 Ga. App. 842 ( 151 S.E. 671); Gledhill v. Brown, 44 Ga. App. 670, 673 ( 162 S.E. 824); Code, §§ 20-1201, 20-1205. The agreement as alleged was to accept an amount less than that claimed to be due; it was executed, the consideration therefor being the settlement of a dispute as to whether the defendant owed any amount of money at all to the plaintiff after her marriage to another. In an accord and satisfaction of a disputed claim it is not the merit of the contentions of either party which determines its validity to support such accord and satisfaction, the controlling factor being the bona fides of the debtor's contention, which as a general rule is a question of fact for the jury. See Riley Co. v. London Guaranty Accident Co., 27 Ga. App. 686 ( 109 S.E. 676). The trial court did not err in overruling the demurrer to the plea of accord and satisfaction as amended.
2. There are ten special grounds in the amended motion for a new trial. Special grounds 1, 2 and 3 all involve the admission in evidence over objection of the statement of the defendant that "it certainly wasn't my intention to pay you alimony if you were to be married." Ground 1 contends that such statement was inadmissible as attempting to vary by parol the terms of an unambiguous contract; ground 2 contends that, in admitting this statement the judge erred in giving the following instruction to the jury: "He has got a right to go into the whole conversation. He is leading up to 1 suppose to where she agreed to a certain consideration"; ground 3 complains because, on renewed objection, the judge stated: "I overrule the objection. Let him go on and state the whole conversation."
As we view the whole case, the issue before the jury was whether there had been an accord and satisfaction of a disputed claim under the contract to pay alimony, and this in no way involved the question whether the alimony contract was or was not ambiguous in its terms nor indeed what the legal effect of the plaintiff's marriage might be. The defendant was not attempting to interpret the alimony contract; at the point where the statement objected to was made he was testifying to his conversation with the defendant which brought on the dispute later settled between the parties. How else except by his testimony as to the contents of this conversation could he establish his plea in evidence? Thus understood in their context, grounds 1 and 3 are clearly without merit. The statement complained of in ground 2, though given in the presence of the jury was not an instruction or expression of opinion on the part of the trial court but was merely an explanation to objecting counsel as to the reason for the court's ruling that the testimony was admissible. Ground 2 shows no error.
Grounds 4, 5, and 6 complain of the refusal to charge certain written requests, grounds 4 and 5 being statements of substantive law as to installment payments of alimony after remarriage of a divorced wife and as to what had been the "manifest intent" of the parties in making the original alimony contract. These were not adjusted to any issue before the jury and the refusal to charge on this subject was not error. The request in ground five was as follows: "Conversely, no burden in this case rests upon the plaintiff to disprove any of the essentials of a valid accord and satisfaction," following a statement that the burden was on the defendant to sustain his plea by a preponderance of the evidence. It is never error to refuse to charge as requested when a portion of such request does not state an accurate principle of law. If the defendant carried the burden which the court correctly charged was upon him to establish his affirmative defense, the plaintiff, in order to win her case, would certainly have the burden of rebutting this evidence. The quoted portion of the charge requested was ambiguous and confusing, and the refusal to charge it was not error.
Grounds 7, 8, 9 and 10 consist of exceptions to sentences (and in some cases, mere portions of sentences) contained in the charge in which the trial court set out certain contentions of the defendant. The contentions were fairly stated and were supported by evidence. Statement of the contentions of a party to a cause, under these circumstances, is never error, not were such statements misleading as tending to cause the jury to believe that the court was charging either the law of the case or his opinion as to the effect of the evidence, rather than the contentions of the parties.
3. In consideration of the general grounds of the motion for a new trial, there is some evidence, although in conflict with other evidence, to have authorized the jury to find in favor of every material allegation set forth in the defendant's plea of accord and satisfaction.
The trial court did not err in overruling the demurrer to this plea and in overruling the motion for a new trial as amended.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.