Catalina, Inc. v. Woodward

182 S.E.2d 921, 124 Ga. App. 26, 1971 Ga. App. LEXIS 797

• Court: Court of Appeals of Georgia
• Decided: June 14, 1971
• Docket: 46135
• Status: Published

Opinions

Quillian, Judge.

The appellee filed a claim against the appellant seeking to recover a sum allegedly due him for commission for goods sold while he was employed by the appellant. The appellant filed a motion for summary judgment which was overruled. The appellant appealed and the case is here for review. Held:

1. The appellee argued in the trial court that the motion for summary judgment should be overruled because it was based on accord and satisfaction which had not been specially pleaded as required by Code Ann. § 81A-108 (c) (Ga. L. 1966, pp. 609, 619; 1967, pp. 226, 230). In support of this position he cites Chastain Finance Co. v. Sherwood, 117 Ga. App. 556, 557 (161 SE2d 401). The appellant argues that this position is not sound and cites Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 345 (173 SE2d 723), which states: "While State Farm did not file a plea of accord and satisfaction as might have been done and as is generally required under Code Ann. § 81A-108 (c) by the filing of a special plea setting that up as an affirmative defense, it did raise the issue in its written motion to strike, and it was raised by the evidence presented in connection with the motion for summary judgment. Our rule in this respect is the same as that under Federal Rule 8 (c), concerning which Professor Moore asserts: 'Rule 8 (c) might seem to imply that affirmative defenses may be raised only by a pleading (where one is required or permitted) and not otherwise. This, however, is too narrow a construction of the rule. A defendant may move for summary judgment under Rule 56 where "there is no genuine issue as to any material fact” and he "is entitled to a judgment as a matter of law”; and it is clear that summary judgment is proper where the defendant shows the existence of an affirmative defense even though he has filed no answer. Under the 1946 amendment to Rule 12 (b), it is also made clear that a defendant may raise an affirmative defense by a motion to dismiss for failure to state a claim; and that the court may treat such a motion as a motion for summary judgment. . . By analogizing the motion to a motion for summary judgment, however, the amended Rule 12 (b) clearly permits affirmative defenses to be raised by motion.’ 2A Moore’s Federal Practice (2d Ed.), p. 1863, § 8.28. Accord: Butcher v. United Electric Coal Co., 174 F2d 1003, 1005.” See also Ezzard v. Morgan, 118 Ga. App. 50, 51 (162 SE2d 793).

Argued April 7, 1971 Decided June 14, 1971. Action for commissions. Fulton Civil Court. Before Judge Bradford. Hopkins & Gresham, Thomas P. Gresham, for appellant.

It is our opinion that the position taken in the Phillips case is sound and anything held to the contrary in Chastain Finance Co. v. Sherwood, 117 Ga. App. 556, supra, is hereby disapproved.

2. The evidence on summary judgment shows that the appellee received a check and a letter from the appellant which stated that the check was "in final settlement of your account.” This evidence being undisputed, accord and satisfaction was proved and it was error not to grant the appellant’s motion for summary judgment. See Motorola Communications &c., Inc., v. South Ga. Nat. Gas Co., 104 Ga. App. 376 (121 SE2d 672); Rivers v. Cole Corp., 209 Ga. 406 (73 SE2d 196).

Judgment reversed.

Bell, C. J., Jordan, P. J., Hall, P. J., Eberhardt, Deen and Whitman, JJ., concur. Pannell and Evans, JJ., dissent.