Studstill v. American Oil Co.

191 S.E.2d 538, 126 Ga. App. 722, 1972 Ga. App. LEXIS 1257

• Court: Court of Appeals of Georgia
• Decided: June 21, 1972
• Docket: 47019
• Status: Published

Opinions

Deen, Judge.

Checks are payable on demand (Code Ann. § 109A-3—104 (2) (b) within a reasonable time after issuance and, when not certified, 30 days is to be considered a reasonable time in which to present for payment (Code Ann § 109A-3—503 (2) (a)). "Bank checks. . . are not payment until themselves paid.” Code § 20-1004. " 'An agreement by a creditor to receive less than the amount of his debt can not be pleaded as an accord and satisfaction, unless it be actually executed by the payment of the money, or the giving of additional security, or the substitution of another debtor, or some other new consideration’, . . . and, in the absence of an agreement to the contrary, a bank check thus tendered as in full payment is not such until it is itself paid” (Colfax Gin Co. v. Buckeye Cotton Oil Co., 24 Ga. App. 610 (2) (101 SE 697)) or unless the check is itself accepted as payment. Interstate Life &c. Co. v. Wilson, 52 Ga. App. 171 (2) (183 SE 672).

While it is clear that an executed accord and satisfaction, by accepting money or cashing a check given in full settlement for less than the amount of the demand, is in bar of an action to collect any excess (Rivers v. Cole Corp., 209 Ga. 406 (73 SE2d 196)) and while retaining a check for an unreasonable length of time may lead to the legal conclusion that it has in fact been accepted as payment (cases to which effect are discussed below) nevertheless, "an agreement by a creditor to receive less than the amount of his debt cannot be pleaded as an accord and satisfaction, unless it be actually executed by the payment of money ... or some other new consideration.” Code § 20-1204. (Emphasis supplied.)

It follows that if it is intended to accept a check as payment of a demand, that check should be promptly presented for payment, usually within a 30-day period. Where, in the absence of circumstances suggesting a contrary state of facts, the check, although not cashed, is kept for a period greatly in excess of this time, such retention may of itself cause the debtor to rely on the theory that his offer (accord) has been accepted (satisfaction), in which case the creditor no longer has a right of action for the excess. That, however, is not the situation here. It was perfectly clear to both parties as long as six months after the initial action of the company in forwarding the check that the plaintiff had not and would not accept it if it was to be construed as an accord and satisfaction. This is shown by the letter of October 12 which commences: "I must assume that your client, Mr. Jack Studstill, Jr., has chosen not to accept our offer, as Mr. Studstill has not negotiated our draft.” By that time the check was already stale, since a bank is under no obligation to a customer to pay a check, other than a certified check, which is presented more than six months after its date. Code Ann. § 109A-4—404. Nor was it in the plaintiff’s possession when the summary judgment order was entered. Where both parties recognize that there has been no agreement in existence at or very close to a time when there is no obligation on the drawee to honor the instrument even if it should be presented, there has obviously been no meeting of the minds on the compromise settlement. "It is only when there is a dispute as to the amount due, and one party tenders and the other accepts a check reciting that it is in payment in full of a demand, and the check is subsequently paid, that the reception and retention of a check can be set up as an accord and satisfaction.” Meeks v. Moulton, 46 Ga. App. 35 (2) (166 SE 445). (Emphasis supplied.) "A defense by one sued for a trespass, that he gave his promissory notes in settlement of the claim for damages is not sufficient to prevent the plaintiff from recovering upon the original cause of action, unless it is shown that the notes have been paid or that there was an express agreement between the parties that the notes should be received by the plaintiff as payment of his claim for damages.” Brantley Co. v. Lee, 109 Ga. 478 (34 SE 574). Here there is no showing that the plaintiff ever expressly agreed to receive the check as payment; in fact, the contrary is established beyond dispute.

The cases cited by the appellee do not require a contrary ruling. In Hamilton & Co. v. Stewart, 108 Ga. 472 (34 SE 123) a check to cover balance of payment was in fact cashed. In Plowden v. Hall, 55 Ga. App. 321 (190 SE 37) the landlord accepted and held the tenant’s check for the very period in which he was attempting to evict him for nonpayment of rent; there being no showing that the check was void, it was held that the undisputed facts showed the tenant was not in arrears for the period on which the eviction proceeding was based. The rule is stated in Pan-American Life Ins. Co. v. Carter, 57 Ga. App. 294 (195 SE 326) that it matters not whether the tender be of cash or a check; if the check is accepted in full settlement an accord and satisfaction will result. Here the evidence is clear that the plaintiff never at any time considered accepting $10,000 in full settlement of his individual damage. Gay v. American Oil Co., 115 Ga. App. 18 (153 SE2d 612) is also a case involving an attempted lease forfeiture where the landlord retained a rent check, and follows Pan-American Life Ins. Co. v. Carter, supra, merely holding that retention of the check amounted to a waiver of the forfeiture. In Holton Dodge, Inc. v. Baird, 118 Ga. App. 316 (163 SE2d 346) the plaintiff did in fact execute a written settlement and accept a draft in payment thereof, and the case holds that after these acts she cannot rescind the settlement in the absence of fraud practiced upon her. Baggett v. Chavous, 107 Ga. App. 642 (131 SE2d 109) holds that retention of a check for an unreasonable time without cashing and without indicating a refusal to accept it as an accord and satisfaction will constitute an acceptance. In Gibson v. Filter Queen Co., 109 Ga. App. 650 (136 SE2d 922) an accord and satisfaction was accomplished where an agreement between the vendee and vendor to rescind the contract was executed by the vendee returning the property to the vendor.

Mere retention of a stale check, where the evidence demands a finding that there was knowledge on the part of the debtor at the time that the creditor refused to accept it in full satisfaction of the unliquidated liability, and where the check was never cashed and was, at the time of the summary judgment order, in the hands of the maker, will not support a judgment of accord and satisfaction. Anything to the contrary in Fidelity & Cas. Co. v. C. E. B. M., Ltd., 116 Ga. App. 92 (156 SE2d 467), must yield to the statute law and older precedents hereinabove cited.

The trial court erred in granting the summary judgment.

Judgment reversed.

Pannell and Stolz, JJ., concur. Hall, P. J., and Evans, J., concur in the judgment only. Bell, C. J., Eberhardt, P. J., Quillian and Clark, JJ., dissent.