Opinion
46063.
ARGUED MARCH 3, 1971.
DECIDED JUNE 22, 1971. REHEARING DENIED JULY 19, 1971.
Complaint. Fulton Civil Court. Before Judge Bradford.
King Spalding, Kirk McAlpin, A. Felton Jenkins, Jr., C. David Vaughan, for appellant.
Heyman Sizemore, W. Dan Greer, Neal H. Ray, Gerald M. Edenfield, for appellees.
The defendant in this case, as movant for summary judgment, failed to negate the right of plaintiffs to recover. Hence, the trial judge did not err in denying the motion for summary judgment.
ARGUED MARCH 3, 1971 — DECIDED JUNE 22, 1971 — REHEARING DENIED JULY 19, 1971.
Plaintiffs, who are 13 in number, filed their joint complaint against Borden, Inc. in the Civil Court of Fulton County. The complaint alleges that Borden is indebted to each of the plaintiffs in varying amounts for milk purchased from them during January, February and March, 1969; that Borden is further indebted to each of the plaintiffs for milk purchased between September 1, 1964, and December 31, 1968. They are unable to calculate the exact amount of this indebtedness because the records of such transactions are in the defendant's possession; that the defendant failed and refused to permit the plaintiffs to examine and inspect the records, and therefore the plaintiffs request an accounting with respect to the period in question.
Borden answered the complaint, denying that it was indebted in any amount to any of the plaintiffs, setting out that it had paid each of them in full for milk purchased for the period of time involved. It set out the affirmative defense of accord and satisfaction in that payments were received and accepted by each of the plaintiffs in full payment for the milk which they had delivered to Borden. Borden subsequently moved for summary judgment in its favor basing the motion on the pleadings, the affidavit of its assistant controller and certain documents. Plaintiffs in response thereto filed 13 counter-affidavits, one by each of the individual plaintiffs, which are substantially identical as to content. The motion for summary judgment was denied by the trial judge who certified such ruling for direct appeal. In this posture the case comes to this court.
In summary, the proof offered on the motion for summary judgment reveals the following. The parties entered into a contract by the terms of which Borden agreed to buy milk produced by each plaintiff; each plaintiff agreed to sell to Borden all the milk that he produced. The contract provided that each calendar month constituted a pay period and that Borden should pay each plaintiff for all milk delivered to Borden during a pay period by means of certain delineated criteria. The contract which referred to Borden as the distributor and to each individual plaintiff as producer further provided: "Settlement Statement. Distributor shall account and pay for all milk delivered by producer during any period within ten (10) days after the end of the pay period and shall furnish the producer with a statement for each calendar month which will show the amount of milk in each sales-use classification, the price per CWT, the butterfat test, any advances to producer, deduction for hauling assignments or any other pertinent information. The company agrees that full settlement will be made for each calendar month on or before the 10th of the following month."
As set forth in the affidavit of Borden's agent, in accordance with the terms of the contracts, Borden made the required monthly and mid-monthly payments and presented to each plaintiff the required monthly settlement statements. More specifically, on or before the twentieth of each month during the period of September 1964 through March 1969, Borden paid to each plaintiff a sum of money based upon the milk received from him during the first half of that month. On or before the tenth day of the following month, Borden paid each plaintiff by check the balance due for the milk delivered during the preceding month. Along with each monthly settlement check, each plaintiff received a monthly statement in accordance with the contract showing the information required by the contract, including the amount of milk delivered and the price per hundred pounds. The amount of the check accompanying the monthly settlement statement was the exact amount shown on the statement.
Attached as an exhibit to the affidavit is a copy of the statement used from April 1966 through March 1969 which was entitled "Milk Settlement" and included a listing as required by the contract. No copy of a settlement statement used from September 1964 to March 1966 was introduced. It was further shown that no plaintiff had returned or refused to cash any check.
According to the affidavit of the plaintiffs, the checks which were received about the tenth day of the month following a particular pay period were subject to adjustment as determined by examination and audit of the defendant's books. The checks contained no restrictive endorsements of any kind indicating they were tendered as final or conclusive payment. It was further set out in each of the affidavits that the procedure in determining the amount due was so complicated as to require an examination and audit of the defendant's books in order to ascertain the correct amount.
The sole question here presented is whether, under the circumstances above related, the plaintiffs' acceptance and cashing the checks tendered to them over the course of some 4 1/2 years constituted an accord and satisfaction as to the amount due the plaintiffs. In our consideration of this case, recognition is given to the rule set out in Rivers v. Cole Corp., 209 Ga. 406, 408 ( 73 S.E.2d 196): "When a creditor receives and retains a sum of money from his debtor less than the amount actually due him with the understanding, either express or implied, that it is received by him in satisfaction of his claim or demand, he cannot thereafter treat it as a nullity and recover the balance, and this is so whether his claim or demand be disputed or undisputed, liquidated or unliquidated. . ." See American Associated Companies v. Vaughan, 213 Ga. 119 ( 97 S.E.2d 144). Code § 20-1201 recites: "Accord and satisfaction is where the parties, by a subsequent agreement, have satisfied the former one, and the latter agreement has been executed." "To be good, the accord must be fully executed." Taylor v. Central of Ga. R. Co., 99 Ga. App. 224, 226 ( 108 S.E.2d 103). Thus, as pointed out in the Taylor case, an executory promise to accept a stated amount in satisfaction of a debt does not become binding until such amount, under the terms of such agreement, is paid and accepted.
The contract in question placed the burden on the company to make full settlement for each calendar month on or before the 10th day of the following month. It does not recite that the parties agree that a full settlement shall then be accomplished. The provision is clearly for the benefit of the producer to insure that payments be made promptly to such producer for all amounts delivered. The language alone is not enough to establish conclusively that payments made to and accepted by the producer would constitute a bar as to each pay period. That being true, we have to consider the further point of whether the so-called "milk settlement" and checks sent with such settlement, along with the information contained thereon and the course of dealing between the parties would amount to an accord and satisfaction. The defendant in this case asked for a summary judgment in toto and may not prevail unless he negates any and every right of plaintiffs to recovery. As to the period from September 1964 to March 1966, we have no showing as to the form of the settlement statement other than that recited in the affidavit of the defendant's agent. While the affiant states at least a part of what was contained therein, he did not affirm that this was the entire contents of the settlement statement used during that period. As pointed out in Mitchell v. Asbury, 94 Ga. App. 465, 466 ( 95 S.E.2d 341), a qualifying statement such as "Subject to correction of any errors or omissions" would have a vital effect in consideration of whether an accord and satisfaction resulted. There being nothing to conclusively establish that the plaintiffs could not recover for the period from September 1964 to March 1966, the trial judge did not err in denying the motion for summary judgment.
Judgment affirmed. Evans, J., concurs. Jordan, P. J., concurs specially.
ON MOTION FOR REHEARING.
On motion for rehearing appellant contends that this court should direct the entry of a partial grant of the motion for summary judgment for the period April 1966 through March 1969. The motion for summary judgment in this case set out that there was no genuine issue as to any material fact and thus sought a grant as to the whole case. The enumeration of error likewise was with regard to a summary judgment in toto and made no mention of any partial recovery. In Smith v. Allen, 115 Ga. App. 80, 81 ( 153 S.E.2d 648), this court held: "As plaintiff has failed to enumerate any error on the trial court's omission to make an order, pursuant to Code Ann. § 110-1204, specifying whether certain facts appear without substantial controversy, we can determine only whether the court erred in denying the motion as to the whole case." See Ireland v. Matthews, 120 Ga. App. 510, 512 ( 171 S.E.2d 387).
It is therefore apparent that under the record before us no partial grant is authorized.
Judgment adhered to. Jordan, P. J., and Evans, J., concur.
In my opinion the defendant was entitled to a summary judgment based on the proof submitted covering the period from April 1966 through March 1969. This may be implied from the holding of the opinion to the effect there was "no showing as to the form of the settlement statement other than that recited in the affidavit" for the period September 1964 to March 1966 and, since the motion was for a summary judgment in toto, the trial court did not err in denying such motion. In my opinion the only material issue of fact in the case related to the period September 1964 to March 1966.