Opinion
40915.
DECIDED OCTOBER 20, 1964.
Distress warrant, etc. Fulton Civil Court — Appellate Division.
M. L. Kahn, for plaintiff in error.
Siegel, Lewis Williams, Sherwyn E. Syna, contra.
Where a tenant gave his landlord a check for the current month's rent, with a conditional indorsement thereon to the effect that the landlord thereby released him from any further obligations on leasing the apartment as per previous written notice, this indorsement implied the cancellation of the lease and of all liability for any further monthly payment of rent thereunder; the legal effect of the landlord's acceptance and cashing of the check was the acceptance of the condition, making it an accord and satisfaction for the total amount of rent owing under the lease, notwithstanding the fact that the tenant was notified of the landlord's non-acceptance of the condition, since the tenant did not assent to the landlord's obliteration of the indorsement.
DECIDED OCTOBER 20, 1964.
E. L. Thompson, t/a H T Company, filed a distress warrant in the Civil Court of Fulton County against A. Gordon Hecht to recover $170 for rent claimed to be due for the month of February 1964, under a lease which terminated on February 28, 1964. The defendant filed a special plea of accord and satisfaction and a counter affidavit. On the trial of the case by the court without a jury, the following evidence was adduced: That the defendant had complained to the plaintiff several times about the boisterous and immoral conduct of his neighboring tenants, some of whom were subsequently arrested on the premises; that the plaintiff had asked some of them to move out, which some did; that the defendant had told the resident manager not to bother others of them, but told her several times, once in writing, that he intended to move; that the rent was due on or about the first of each month; that the defendant vacated the apartment on January 21 or 22, 1964; that on or about January 20, 1964, the plaintiff received the defendant's check, dated January 4, 1964, for $170, the rent for January; that the defendant wrote a conditional and qualified indorsement on the back of the check, to the effect that, "The Lenox Apartments and E. T. Thompson Company hereby release A. G. Hecht from any further obligations on leasing apartment A-6 as per previous written notice"; that the plaintiff notified the defendant that it did not accept the condition and that they were x-ing it out because they had never authorized the defendant to terminate the lease, to which the defendant replied, "Take it or not"; that the plaintiff then x-ed out the indorsement and cashed the check. Judgment was rendered in favor of the defendant on the special plea and the court overruled the plaintiff's motion for a new trial on the general grounds. On appeal, this judgment was affirmed by the appellate division of the lower court, to which judgment the plaintiff excepts.
"It is now the law of this State that if a debtor remits to the creditor a sum of money, less than the amount actually due, upon the condition, either express or implied, that it is in satisfaction of the creditor's claim, and the latter accepts and retains the money, an accord and satisfaction results, and this is true whether the demand be liquidated or unliquidated, disputed or undisputed." Dixie Belle Mills v. Specialty Machine Co., 217 Ga. 104, 107 ( 120 S.E.2d 771); Rivers v. Cole Corp., 209 Ga. 406 ( 73 S.E.2d 196), adopting the dissent in Sylvania Electric Products v. Electrical Wholesalers, 198 Ga. 870 ( 33 S.E.2d 5); Motorola c. Electronics v. South Ga. c. Co., 104 Ga. App. 376 (1) ( 121 S.E.2d 672). "The reason of this rule is that payment being made upon condition, the acceptance of the payment carries with it the acceptance of the condition." Citizens c. Bank v. Union Warehouse c. Co., 157 Ga. 434, 453 ( 122 S.E. 327). This rule "applies with full force and effect, although the creditor protests at the time that the amount paid is not all that is due, or that he does not accept it in full satisfaction of his claim. Where the tender or offer is thus made, the party to whom it is made has no alternative but to refuse it or accept it upon such condition. If he accepts it, he accepts the condition also, notwithstanding any protest he may make to the contrary. . . The erasure or alteration of the condition expressed in a check by the creditor, without notice to and assent by the debtor, will not prevent its acceptance from constituting an accord and satisfaction, since, if the creditor were allowed to accept it for a different purpose than that allowed, it would be to allow him to make a contract with defendants without their knowledge and consent." (Emphasis supplied.) Ryan v. Progressive Retailer Publishing Co., 16 Ga. App. 83, 88, 89 ( 84 S.E. 834).
In this case the evidence shows that, although the defendant had notice of the plaintiff's alteration of the conditional indorsement, he did not assent to it; therefore, under the above authorities, the court was authorized to find that the presentment of the check for payment constituted an acceptance of the terms of the conditional indorsement. The effect of the indorsement was to cancel the lease as of the end of January, thereby relieving the defendant from liability for rent for the month of February — the last remaining month under the lease agreement. The conduct of the lessor in obliterating the indorsement and cashing the check had the legal effect of acceptance of the terms of the indorsement and amounted to an accord and satisfaction for the total amount of rent owing under the lease.
The Appellate Division of the Civil Court of Fulton County did not err in affirming the judgment of the trial court in favor of the defendant and its judgment overruling the motion for a new trial.
Judgment affirmed. Frankum and Pannell, JJ., concur.