Doyal v. Ben O'Callaghan Co.

Court of Appeals of Georgia

Doyal v. Ben O'Callaghan Co.

208 S.E.2d 136, 132 Ga. App. 336, 15 U.C.C. Rep. Serv. (West) 419, 1974 Ga. App. LEXIS 1687

CourtCourt of Appeals of Georgia

DecidedJune 21, 1974

Docket48934

StatusPublished

Cited by8 cases

This text of 208 S.E.2d 136 (Doyal v. Ben O'Callaghan Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Doyal v. Ben O'Callaghan Co., 208 S.E.2d 136, 132 Ga. App. 336, 15 U.C.C. Rep. Serv. (West) 419, 1974 Ga. App. LEXIS 1687 (Ga. Ct. App. 1974).

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Opinions

Bell, Chief Judge.

1. The defendant by way of counterclaim sought recovery on a $12,000 note executed by plaintiffs payable to defendant, plus interest and attorney fees. The trial court partially granted defendant’s motion for summary judgment for $12,000, the principal, plus specified interest and attorney fees. The plaintiffs admitted execution of the note and it was attached to the complaint. It is also undisputed that the note has not been paid and that defendant made demand upon plaintiff for payment in accordance with Code Ann. § 20-506 to establish the right to obtain the 15% attorney fees specified in the note. The only defense asserted [337]*337against recovery on the note was failure of consideration. The note was a part of an agreement dated March 3, 1969, given in settlement of all matters previously in dispute which arose out of their original contract for the installation by defendant of a heating and air conditioning system in plaintiffs’ premises. By its terms, it was agreed that the "balance due” defendant upon the original contract would be settled and compromised and all claims of "plaintiffs” against defendant and all claims of defendant against plaintiffs would be released and discharged by payment by plaintiffs of $19,572.10 as follows: (1) $7,572.10 in cash on or before March 6, 1969; and (2) the balance of $12,000 to be paid by the note which is in issue. The contended failure of consideration is the defendant’s refusal to honor the warranty provision of the settlement contract. This contention has no merit. The parties acknowledged in the new agreement that a "balance was due” defendant. It is obvious from this language that the plaintiffs gave the note in payment of and security for an antecedent obligation, i. e. the amount due defendant on the original contract. No consideration is necessary for an instrument given in payment of or as security for an antecedent obligation of any kind. Code Ann. § 109A-3—408. Notwithstanding the above, com sideration was given as the settlement of the disputed claim is sufficient to render the entire contract binding. Riley & Co. v. London Guaranty &c. Co., 27 Ga. App. 686 (109 SE 676). There is no genuine issue of fact with reference to the note. Defendant has shown its right to judgment on the note as a matter of law. The grant of the partial summary judgment was correct.

2. The trial court also correctly ruled that there were triable issues as to the main claim of plaintiffs for damages for breach of warranty as provided for in the settlement contract. This contract operated as an accord and satisfaction of the earlier one and plaintiffs’ right to recover on a breach of warranty is controlled by the latter contract.

3. Issues as to the computation of interest on the note and attorney fees have not been enumerated as error and are not argued. We have no jurisdiction to pass on these issues. Code Ann. § 6-810; Calhoun v. Patrick, 116 [338]*338Ga. App. 303 (157 SE2d 31).

Argued January 11, 1974 Decided June 21, 1974 Rehearing denied July 11, 1974 Hurt, Hill & Richardson, Robert L. Todd, J. Robert Persons, for appellant. Lipshutz, Macey, Zusmann & Sikes, Charles C. Pritchard, Charles E. Lamkin, for appellee.

Judgment affirmed.

Eberhardt, P. J., Clark, Stolz and Webb, JJ., concur. Pannell, P. J., and Been, J., concur specially. Quillian and Evans, JJ., dissent.

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Bell, Chief Judge.

1. The defendant by way of counterclaim sought recovery on a $12,000 note executed by plaintiffs payable to defendant, plus interest and attorney fees. The trial court partially granted defendant’s motion for summary judgment for $12,000, the principal, plus specified interest and attorney fees. The plaintiffs admitted execution of the note and it was attached to the complaint. It is also undisputed that the note has not been paid and that defendant made demand upon plaintiff for payment in accordance with Code Ann. § 20-506 to establish the right to obtain the 15% attorney fees specified in the note. The only defense asserted [337]*337against recovery on the note was failure of consideration. The note was a part of an agreement dated March 3, 1969, given in settlement of all matters previously in dispute which arose out of their original contract for the installation by defendant of a heating and air conditioning system in plaintiffs’ premises. By its terms, it was agreed that the "balance due” defendant upon the original contract would be settled and compromised and all claims of "plaintiffs” against defendant and all claims of defendant against plaintiffs would be released and discharged by payment by plaintiffs of $19,572.10 as follows: (1) $7,572.10 in cash on or before March 6, 1969; and (2) the balance of $12,000 to be paid by the note which is in issue. The contended failure of consideration is the defendant’s refusal to honor the warranty provision of the settlement contract. This contention has no merit. The parties acknowledged in the new agreement that a "balance was due” defendant. It is obvious from this language that the plaintiffs gave the note in payment of and security for an antecedent obligation, i. e. the amount due defendant on the original contract. No consideration is necessary for an instrument given in payment of or as security for an antecedent obligation of any kind. Code Ann. § 109A-3—408. Notwithstanding the above, com sideration was given as the settlement of the disputed claim is sufficient to render the entire contract binding. Riley & Co. v. London Guaranty &c. Co., 27 Ga. App. 686 (109 SE 676). There is no genuine issue of fact with reference to the note. Defendant has shown its right to judgment on the note as a matter of law. The grant of the partial summary judgment was correct.

2. The trial court also correctly ruled that there were triable issues as to the main claim of plaintiffs for damages for breach of warranty as provided for in the settlement contract. This contract operated as an accord and satisfaction of the earlier one and plaintiffs’ right to recover on a breach of warranty is controlled by the latter contract.

3. Issues as to the computation of interest on the note and attorney fees have not been enumerated as error and are not argued. We have no jurisdiction to pass on these issues. Code Ann. § 6-810; Calhoun v. Patrick, 116 [338]*338Ga. App. 303 (157 SE2d 31).

Argued January 11, 1974 Decided June 21, 1974 Rehearing denied July 11, 1974 Hurt, Hill & Richardson, Robert L. Todd, J. Robert Persons, for appellant. Lipshutz, Macey, Zusmann & Sikes, Charles C. Pritchard, Charles E. Lamkin, for appellee.

Judgment affirmed.

Eberhardt, P. J., Clark, Stolz and Webb, JJ., concur. Pannell, P. J., and Been, J., concur specially. Quillian and Evans, JJ., dissent.

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208 S.E.2d 136, 132 Ga. App. 336, 15 U.C.C. Rep. Serv. (West) 419, 1974 Ga. App. LEXIS 1687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doyal-v-ben-ocallaghan-co-gactapp-1974.

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