Opinion
33418.
DECIDED APRIL 6, 1951. REHEARING DENIED MAY 4, 1951.
Complaint; from Fulton Civil Court — Judge Parker. November 27, 1950.
Brackett Brackett, for plaintiff.
Harold Sheats, for defendant.
As such issue was not involved in the case, the court erred in charging the jury on accord and satisfaction of the contract sued on.
DECIDED APRIL 6, 1951. REHEARING DENIED MAY 4, 1951.
R. B. Pullen sued Jack Martin Moore upon a contract, allegedly entered into between the two, whereby the plaintiff was to represent the defendant as attorney on an annual basis and from year to year for $2000 a year. The plaintiff alleged: that he rendered services under said contract from June 1, 1944, through May 31, 1949, but that he had not been compensated for two years of service rendered within that time; and that the defendant was indebted to him in the sum of $4000 for such services. The defendant answered, denying the existence of the contract, and further alleged: that on June 2, 1944, the defendant loaned to the plaintiff $2000 taking the plaintiff's note therefor; that thereafter, during the last three months of 1946, the exact date not being remembered by the defendant, the plaintiff, who had, from time to time since the making of the loan, rendered to the defendant various legal and accounting services without any agreement between them as to the value of such services, entered into an oral agreement with the defendant that if the defendant would extinguish the plaintiff's said indebtedness and deliver up to the plaintiff his note therefor, the plaintiff would accept the same in full settlement of all services performed by the plaintiff for the defendant since the date of said loan through May 31, 1947; that, in accordance with said agreement, the defendant did extinguish the plaintiff's indebtedness, and delivered to him the note evidencing the same, in full and complete settlement of all claims of the plaintiff on the defendant for services through May 31, 1947; that on September 2, 1947, the defendant paid to the plaintiff $2000, and on June 15, 1948, the defendant paid to him $2000 in payment of all further legal services rendered and to be rendered by the plaintiff to the defendant, including pending litigation; that the defendant was not indebted to the plaintiff in any amount. The plaintiff introduced evidence to show that he and the defendant entered into a contract for the plaintiff's services for the fiscal years ending May 31, 1945, May 31, 1946, May 31, 1947, May 31, 1948, and May 31, 1949, at $2000 a year; that he had performed certain services under the contract; that, during the period of the contract, the defendant had paid only $6000, leaving a balance owing of $4000 for services rendered under the contract. The defendant introduced evidence denying the existence of any contract with the plaintiff, and to show that his arrangement with the plaintiff concerning services rendered by the plaintiff was as he had stated in his answer. The jury returned a verdict for the defendant. The court overruled the plaintiff's amended motion for a new trial and he excepted.
One of the special grounds of the amended motion for a new trial alleged that the court erred in charging the jury: "If you should believe that there was a contract, and if you believe that the parties have settled this liability, if there was a liability, for attorney's fees by mutual accord and satisfaction or in money paid and received in settlement of the liability, if there was a liability, then you would return a verdict for the defendant." A defense of accord and satisfaction must be specially pleaded, and where a defendant fails to so plead, evidence tending to show accord and satisfaction can be excluded. Ingram v. Hilton Dodge Lumber Co., 108 Ga. 194 (1) ( 33 S.E. 961). Here the defendant did not plead accord and satisfaction of the alleged contract sued on, but pleaded satisfaction for all services rendered him by the plaintiff on a completely different theory, and the defendant by his evidence did not attempt to show accord and satisfaction of the alleged contract sued on, but sought to show thereby that the services rendered by the plaintiff were satisfied as set out in his answer. Thus the issue of accord and satisfaction of the contract sued on was not in the case. As the jury might have based their verdict on such charge it was harmful to the defendant for the court to charge the jury that they were authorized to find that the indebtedness claimed by the plaintiff under the contract had been extinguished by accord and satisfaction.
The other alleged errors in the court's charge will not likely occur on a new trial of the case and are therefore not considered.
As the case is being reversed on another ground it is not necessary to rule on the general grounds of the motion for a new trial.
The court erred in charging the jury on accord and satisfaction and in overruling the motion for a new trial.
Judgment reversed. Sutton C. J., and Worrill, J., concur.