Home/Court of Appeals of Georgia/Nelson, Farber & Franson, Inc. v. Ben Hyman & Co.

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

188 S.E.2d 924, 125 Ga. App. 724, 1972 Ga. App. LEXIS 1455
Court of Appeals of Georgia·Decided February 29, 1972·No. 46924·Published

Opinions

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.

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Nelson, Farber & Franson, Inc. v. Ben Hyman & Co., 188 S.E.2d 924, 125 Ga. App. 724, 1972 Ga. App. LEXIS 1455 (Ga. Ct. App. 1972).

188 S.E.2d 924 (Nelson, Farber & Franson, Inc. v. Ben Hyman & Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Phillips v. State Farm Mutual Automobile Insurance
173 S.E.2d 723 (Court of Appeals of Georgia, 1970)
Catalina, Inc. v. Woodward
182 S.E.2d 921 (Court of Appeals of Georgia, 1971)
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136 S.E.2d 505 (Court of Appeals of Georgia, 1964)
Rivers v. Cole Corporation
73 S.E.2d 196 (Supreme Court of Georgia, 1952)
Thompson v. Hecht
139 S.E.2d 126 (Court of Appeals of Georgia, 1964)