Swofford v. Glaze

Supreme Court of Georgia

Swofford v. Glaze

57 S.E.2d 823, 206 Ga. 574, 1950 Ga. LEXIS 523

CourtSupreme Court of Georgia

DecidedFebruary 15, 1950

Docket16891

StatusPublished

Cited by7 cases

This text of 57 S.E.2d 823 (Swofford v. Glaze) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Swofford v. Glaze, 57 S.E.2d 823, 206 Ga. 574, 1950 Ga. LEXIS 523 (Ga. 1950).

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Opinion

Head, Justice.

1. “Ordinarily the plaintiff, in his petition, need not anticipate or negative a possible defense. Where, however, such defense is anticipated, it must be effectually avoided, or the complaint is bad.” James v. Maddox, 153 Ga. 208 (111 S. E. 731); Smith v. Scarborough, 182 Ga. 157 (185 S. E. 105). Where the pleaded facts, if proven, would be insufficient as a matter of law to negative the defense of accord and satisfaction, the petition would be subject to an appropriate demurrer. In the absence of any attack as to the sufficiency of the pleaded facts to negative the defense of accord and satisfaction, the plaintiff was entitled to submit to the jury the evidence relied upon by her to negative such defense, along with the evidence relied upon by her to sustain her action for damages. It was, therefore, error for the trial court to grant the motion of the defendant for a separate trial on the plea of accord and satisfaction.

2. Under the above ruling, the further proceedings were nugatory, and no ruling is required on questions 2 and 3, which counsel agree are before the court for decision.

Judgment reversed.

All the Justices concur. *575 Frank Lawson and Wheeler, Robinson & Thurmond, for plaintiff. Sloan & Telford and Sidney 0. Smith Jr., for defendant.

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Head, Justice.

1. “Ordinarily the plaintiff, in his petition, need not anticipate or negative a possible defense. Where, however, such defense is anticipated, it must be effectually avoided, or the complaint is bad.” James v. Maddox, 153 Ga. 208 (111 S. E. 731); Smith v. Scarborough, 182 Ga. 157 (185 S. E. 105). Where the pleaded facts, if proven, would be insufficient as a matter of law to negative the defense of accord and satisfaction, the petition would be subject to an appropriate demurrer. In the absence of any attack as to the sufficiency of the pleaded facts to negative the defense of accord and satisfaction, the plaintiff was entitled to submit to the jury the evidence relied upon by her to negative such defense, along with the evidence relied upon by her to sustain her action for damages. It was, therefore, error for the trial court to grant the motion of the defendant for a separate trial on the plea of accord and satisfaction.

2. Under the above ruling, the further proceedings were nugatory, and no ruling is required on questions 2 and 3, which counsel agree are before the court for decision.

Judgment reversed.

All the Justices concur. *575 Frank Lawson and Wheeler, Robinson & Thurmond, for plaintiff. Sloan & Telford and Sidney 0. Smith Jr., for defendant.

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Bluebook (online)

57 S.E.2d 823, 206 Ga. 574, 1950 Ga. LEXIS 523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swofford-v-glaze-ga-1950.

Opinion

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