Opinion
40831.
DECIDED SEPTEMBER 29, 1964. REHEARING DENIED OCTOBER 15, 1964.
Action on account. Fulton Civil Court. Before Judge Wright.
Fine Rolader, D. W. Rolader, for plaintiff in error.
Gerstein Carter, Joe W. Gerstein, contra.
1. (a) To constitute a binding agreement of accord and satisfaction an agreement to accept a return of merchandise previously sold on open account must be supported by a valid consideration.
(b) The breach of an exclusive distributorship agreement is not a consideration supporting an agreement that merchandise might be returned for credit unless the exclusive distributorship agreement itself is valid and binding.
2. A general demurrer to an amendment to a pleading may be filed at any time before verdict.
3. It is within the discretion of the trial judge as to whether he will entertain a second motion for summary judgment, the first having been denied, particularly where there has been a material change in the status of the pleadings after denial of the first motion.
DECIDED SEPTEMBER 29, 1964 — REHEARING DENIED OCTOBER 15, 1964.
In this simple suit on an open account an almost unbelievable accumulation of procedural snarls has led to this appeal. Stein's answer to the suit was a general denial and a cross action based on the following facts: The parties had orally agreed that defendant was to be the exclusive distributor for plaintiff's products in the metro-Atlanta area. Stein gave up its exclusive distributorship of another line, and allowed plaintiff to place a display on its premises. Plaintiff was to furnish and pay two salesmen but furnished only one. Plaintiff (Briggs) then notified Stein that another dealer was to be co-distributor of its products, whereupon Stein notified plaintiff that this would be in breach of their contract. When plaintiff would not continue Stein as exclusive distributor defendant demanded and plaintiff agreed that Stein might return for credit the Briggs merchandise then on hand at defendant's warehouse. An inventory was taken in September, 1959, and plaintiff requested Stein to send portions of it to certain other dealers. In August, 1960, the remaining inventory was still in defendant's warehouse and defendant asked for shiping instructions, stating, in the alternative, that it would have to begin charging storage on the merchandise. Defendant prayed in its cross action for judgment for storage charges accruing after the request for shipping instructions and the excess of the value of the inventory over what its account with plaintiff showed.
Plaintiff's general demurrer to the cross action only was sustained. Defendant then amended its answer by including the same facts as had been alleged in the cross action. Plaintiff moved for a summary judgment on the basis that the sustaining of the demurrer to the cross action was an adjudication that the facts alleged did not constitute a defense to the plaintiff's suit and that the cross action further admitted that plaintiff was due the sum sued for. The motion was denied. After a lapse of some nine months plaintiff demurred to the amendment to the answer. The demurrers were sustained over defendant's written motion to dismiss the demurrers as filed too late. Plaintiff again moved for summary judgment, attaching affidavits in support of its suit on open account. Defendant responded with an affidavit again setting out the facts outlined above, relied on its general denial and urged that there was no provision of law for a second motion for summary judgment. Plaintiff's motion was granted.
Stein excepts to the sustaining of demurrers to its cross action and its amendment, the overruling of its motion to dismiss plaintiff's demurrers to its amendment and to the granting of the motion for summary judgment.
1. The central issue here and the only substantive one is whether the matter pleaded by Stein Steel in its cross action and its amended answer is a legally sufficient defense to an action on open account. These allegations show that Stein is relying on its agreement with Briggs to return the merchandise as an accord and satisfaction. An accord and satisfaction is legally valid as a defense either when it has been fully executed or when it is separately enforceable under the usual contract rules.
(a) Absent a valid consideration there was no accord and satisfaction as to the unexecuted portion of the agreement that the merchandise might be returned for credit. Code § 20-1203; and see 1 EGL 160, Accord Satisfaction, § 7. And this is true though there had been a part performance by a return or a shipping of a portion of it to others upon instruction from the creditor. Taylor v. Central of Ga. R. Co., 99 Ga. App. 224 ( 108 S.E.2d 103), and citations. The contract being one admitting of apportionment, however, it may be observed that the part performance could be pleaded as a defense pro tanto if the debtor had not received credit for the merchandise actually returned or shipped to others. Code § 20-1103.
(b) The consideration relied upon by Stein is its rights growing out of the alleged breach of the contract which it had for an exclusive distributorship when Briggs appointed another distributor in the same area for its products. For the breach to constitute a consideration supporting the agreement that merchandise previously purchased might be returned for credit it must appear that the exclusive distributorship agreement was valid and binding. Under a factual situation similar to that here presented it was held in Huggins v. Southeastern Cement Co., 121 Ga. 311 ( 48 S.E. 933) that the unexecuted portion of the agreement for return was unilateral and unenforceable. To the same effect is Mountain City Mill Co. v. Cobb, 124 Ga. 937 ( 53 S.E. 458), where Cobb was appointed exclusive distributor of "White Satin" flour but the mill sold flour to one of his business rivals. Again, the court refused to allow Cobb's attempted recoupment in an open account action, holding the contract to be unilateral. Chappell v. F.A.D. Andrea, Inc., 41 Ga. App. 413 ( 153 S.E. 218) presented the same factual pattern and the court held that not only was the contract involved unilateral and not binding, but also was too indefinite as to time. And see, Miami Butterine Co. v. Frankel, 190 Ga. 88 ( 8 S.E.2d 398).
Since the original contract was not binding, its breach could not provide the consideration for the subsequent agreement between the parties that the defendant would be given credit for a return of the merchandise previously shipped to it, and there was no enforceable accord and satisfaction.
The decision of the Supreme Court in a collateral action by Stein seeking recovery for breach of the contract and an injunction against further proceedings in this case is not contrary to this holding. The court did not pass on the merits of the defense but merely held that there was no ground for equitable relief "since all contentions made can be pleaded in defense of the suit . . ." in the Civil Court of Fulton County. Stein Steel c. Co. v. Briggs Mfg. Co., 219 Ga. 779 ( 135 S.E.2d 862).
The attempted cross action and subsequent amendment to its answer by Stein setting up this defense was not legally sufficient and both were properly stricken on demurrer.
2. Stein lays great stress on the fact that the general demurrer to the amendment to the answer was filed almost nine months after the amendment was filed. We cannot take judicial notice of Rule 28 of the Civil Court of Fulton County dealing with demurrers to answers relied on by Stein. Wilson v. Barrow, 107 Ga. App. 555 (5) ( 130 S.E.2d 812). Even assuming that rule was before us and considering the provisions of Code Ann. § 81-301, and Code § 81-1312, the plaintiff may still generally demur to an answer or amendment thereto at any time before verdict. Bigelow-Sanford Carpet Co. v. Goodroe, 98 Ga. App. 394 (2) ( 106 S.E.2d 45), Norton v. National Commercial Bank c. Co., 109 Ga. App. 867 ( 137 S.E.2d 570). The court did not err in overruling the motion to dismiss plaintiff's general demurrer to the amendment.
Providing that demurrers to amendments shall be filed within 15 days.
Providing in part that "all demurrers of the plaintiff to the defendant's answer or other pleas shall be filed within 15 days after such defensive pleadings are filed.
Providing, inter alia, that "The opposite party shall be allowed a reasonable time for answering such amendment."
(3). (a) Should the plaintiff's motion for summary judgment have been denied because a previous motion by plaintiff had been denied? We do not think so. It was held in Suggs v. Brotherhood of Locomotive Firemen Enginemen, 106 Ga. App. 563 ( 127 S.E.2d 827) that "[t]he overruling of the defendants' first motions for summary judgments was not a bar to their second motions for the reason that the first motions did not require a decision as to the applicability of article 30 of the employment agreement since that defense was not properly pleaded, whereas, the second motions did raise this issue." The Federal authorities hold that consideration of a second motion is in the discretion of the trial judge, especially where there has been a change in the pleadings, etc., as there was here. See Beedy v. Washington Water Power Co., 238 F.2d 123 (9th Cir.); 6 Moore's Fed. Practice, § 56.14 [2]. There was no error in entertaining the second motion.
(b) The posture of the case with both the cross claim and amended answer stricken on demurrer is to leave only a general denial of the indebtedness. Briggs' motion for summary judgment attaching affidavits attesting to the correctness of the account and of the averments in the original petition pierced the denial of the indebtedness. The only affidavit offered by Stein contained the same matter as that previously pleaded in the cross action and the amended answer, and stricken on demurrer. The general denial contained in defendant's answer did not serve to make the factual issue required by the Summary Judgment Act.
There was no error below.
Judgment affirmed. Bell, P. J., and Jordan, J., concur.