Let it be clearly understood that I recognize that the general rule of force in most jurisdictions is that, for the payment of an amount less than the claim to constitute an accord and satisfaction, it is essential that there exist a dispute as to the correctness of the claim, or that there be some other consideration flowing to the creditor for his waiver of the balance of his claim. In Chicago Ry. Co.v. Clark, 178 U.S. 353, 366 (20 Sup. Ct. 924, 44 L. ed. 1099), the Supreme Court of the United States, after stating this general rule, pointed out that there were in some States statutory exceptions to this general rule, among which was section 3735 (now § 20-1204) of the Code of this State. *Page 877 In view of the undisputed fact that Georgia by the adoption of the Code section has, as pointed out by the Supreme Court of the United States, adopted a rule that differs from the rule of force in most jurisdictions, it is obvious that the general rule has no application in this State and that decisions in jurisdictions where it obtains are irrelevant to the instant case.
Precisely what are the essential ingredients of an accord and satisfaction is of vital importance to the entire public, and should if possible be made clear and unmistakable. For this reason, although being firmly convinced that the majority opinion erroneously states these essentials, I would nevertheless, for the sake of clarity and finality, concur in that opinion but for the fact that I am convinced that it does not clarify or settle these matters, and is not even controlling law and would not be so if all the Justices concurred, because it is in irreconcilable conflict with older decisions of this court which were concurred in by all the Justices. If so, it settles nothing, but simply adds to the doubt, confusion, and uncertainty already existing. By the Code, § 6-1611, it is specified in what manner a decision of the Supreme Court having the concurrence of all the Justices may be lawfully overruled or materially modified. Until this has been done in the manner there prescribed, such decisions have the force and effect of a statute. Act of 1858 (Ga. L. 1858, p. 74);Lucas v. Lucas, 30 Ga. 191, 202 (76 Am. D. 642); Calhoun v. Cawley, 104 Ga. 335, 344 (30 S.E. 773); Hagan v. AsaG. Candler Inc., 189 Ga. 250, 258 (5 S.E.2d 739, 126 A.L.R. 108). In case of a conflict in such decisions, the older decision is the law and is binding and controlling upon all the courts of this State. Calhoun v. Cawley, supra; Sheppard v.Bridges, 137 Ga. 615, 626 (74 S.E. 245); Hardin v.Reynolds, 189 Ga. 589 (6 S.E.2d 913); Fuqua v. Hadden,190 Ga. 361 (9 S.E.2d 243). The constitution (Code, § 2-3009) provides that the decisions of the Supreme Court are binding as precedents upon the Court of Appeals. Therefore I assume there can be no dissent from the assertion that, to the extent that the decisions of this court concurred in by all the Justices have defined and specified the essentials of an accord and satisfaction under our statute, they are the law, binding alike upon the Court of Appeals and the Supreme Court; and all decisions of the Court of Appeals, together with any later decisions of the Supreme Court that conflict with *Page 878 such older unanimous decisions of the Supreme Court, are unsound, are not the law, and must yield to the older Supreme Court decisions. Consequently, if there are, as I confidently believe I will hereinafter point out, older and controlling decisions of the Supreme Court with which the majority opinion here, as well as the decisions cited therein, are in conflict, then the majority opinion is not the law and is not binding upon anyone, not even the Justices who concurred therein, and if so the only purpose it can serve is to further confuse the public as to the true rule.
Since the majority opinion reverses the Court of Appeals' ruling that the acceptance by the creditor of the debtor's check for an amount less than the creditor's claim, accompanied by a letter stating that the check was offered in full satisfaction, constituted an accord and satisfaction, and this without regard to whether or not there was a bona fide dispute regarding the claim, it necessarily rules that the facts relating to the acceptance of the conditional tender do not constitute an executed agreement, and that it is essential that a bona fide dispute exist in order that an accord and satisfaction may result. If by the controlling decisions of the Supreme Court I can demonstrate that a dispute, whether in bad faith or in good faith, is unnecessary, and that the facts touching the tender and acceptance constitute as a matter of law an agreement fully executed, the very foundation upon which the majority opinion must of necessity rest will thereby be destroyed and the opinion must, accordingly, fall. In decisions having the concurrence of all the Justices of this court, in Tarver v. Rankin, 3 Ga. 210, and Brown v. Ayer, 24 Ga. 288, it was held that the acceptance by the creditors as payment in full of one-half of their claims, which were in each case liquidated by judgment, constituted an accord and satisfaction of those claims. There is no room for any contention that a dispute of any character whatsoever existed as to those claims. There is no escape from the conclusion that a dispute is unnecessary, since these decisions settle that question beyond any doubt, for they are the oldest decisions on that subject and have never been modified or overruled. Any doubt that those decisions intended to thus rule will instantly disappear when the following quotations therefrom are read. In the Tarver case it is held in the fourth headnote: "Parol satisfaction of a judgment may be shown, even when the payment was for a less sum than the whole amount due, provided it was actually received and accepted *Page 879 in full discharge of said judgment." In the Brown case it was held in the third headnote: "If a creditor agree to receive from his debtor a less sum in satisfaction of a greater, and the less sum is paid him and he accepts it, the contract is executed, and he can not treat it as a nullity and recover the balance; otherwise, if the contract is executory, and must be enforced through a court of law." In each of these cases, however, the matter of the agreement of the parties to the accord and satisfaction was express, and, hence, they did not deal with and had no bearing upon the other proposition upon which the majority opinion rests, to wit, whether or not the acceptance of a conditional offer or tender within itself constitutes an agreement in contemplation of the Code, § 20-1204. On this question, however, we are not left in doubt, for this court in unanimous decisions has repeatedly held that such facts and circumstances constitute an agreement just as effectually as if the agreement had been reduced to writing and signed by both parties. In Hamilton v. Stewart, 105 Ga. 300 (31 S.E. 184), and in the same case, in 108 Ga. 472 (34 S.E. 123), it was held that a conditional offer or tender in substantially the exact language and manner employed in the instant case meant that the debtor was thereby saying to the creditor: "We will pay you $776.62 in cash, upon the condition that you accept the same in full satisfaction of the notes held against us, and upon no other condition are you authorized to retain the amount which we remit;" and that by the act of the creditor in retaining and cashing the check and appropriating its proceeds to his own use he thereby accepted the condition and agreed that the payment satisfied the entire claim. These two decisions were expressly approved in Jenkins v. National Mutual B. L. Assn.,111 Ga. 732 (36 S.E. 945). In neither of the cases had there been any pretense or attempt to reach an express agreement, and the only semblance of an agreement was the acceptance of the conditional offer or tender; and it was held that the creditor could not accept the check and repudiate the conditions which the debtor had attached thereto, but that in accepting the one he automatically and as a matter of law accepted the other and agreed thereto. Had the creditor, while in the very act of appropriating the proceeds of the check, loudly declared his disagreement with the terms upon which the tender was made, and such declarations had been communicated to the debtor, under the *Page 880 controlling decisions of this court he would nevertheless and despite such declarations have been held as a matter of law to have agreed to all of the conditions attached to the tender.Glaze v. Western Atlantic R. Co., 67 Ga. 761 (2);Walker v. O'Neill Mfg. Co., 128 Ga. 831 (58 S.E. 475);Citizens Southern Bank v. Union Warehouse Co., 157 Ga. 434 (122 S.E. 327). In the case last cited, after stating this rule and citing decisions of this court to support it (page 453), it is said: "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." It would seem that the decisions I have cited show conclusively that under the law of this State a tender of less than the claim, with the express condition attached that it satisfies the entire claim, when accepted by the creditor constitutes in law an agreement of the parties to thus settle the debt, and being an executed agreement constitutes an accord and satisfaction under the statute. Any attempt to escape the binding force of these decisions upon the theory that the claims there settled were unliquidated or were in dispute is met by the inescapable fact that the law nowhere makes a distinction between the type of agreement essential to an accord and satisfaction of a disputed or unliquidated claim and the type of agreement necessary for the same purpose where the claim is liquidated. Indeed, the very mudsill upon which the law of accord and satisfaction must stand is that in every case the parties have agreed to the settlement. What would constitute an agreement sufficient in one case would be an agreement sufficient in any other, and the Code, § 20-1204, which declares the necessity for an agreement applies alike to disputed and undisputed, liquidated and unliquidated claims, and requires one and only one type of agreement in all cases.
The following decisions do not militate against what has been said. In Molyneaux v. Collier, 30 Ga. 731, it was held that an executory contract to release a judgment lien for $8000 against a solvent debtor for $2000 was without consideration and was a nudum pactum, and, therefore, did not constitute an accord and satisfaction of the original claim. The court (p. 747) said: "It is manifest that these execution debtors were not insolvent when the original contract was made between Rawls and Collier, which, it is conceded, never was executed. All that is claimed is the substitution of another mode of performance." The quoted portion *Page 881 of the opinion clearly shows that the facts there, as construed by this court, did not constitute an accord and satisfaction, and they would not do so under the rule which I have stated. InCarlton v. Western Atlantic R. Co., 81 Ga. 531 (supra), the claimant there was an employee of the railroad under a written contract stipulating the measures of damages payable to the employee in the event of injury while employed. The injured employee signed a receipt reciting that the employer had agreed to pay $32.50 in full for all wages due him to date and in full for all damages which he had sustained on account of the injury, expressly accepting such sum in full satisfaction of all demands to date. This court, without citing as much as a Code section to support the ruling, held that the trial court erred in charging that the settlement was a bar to the employee's right to recover for the damages resulting from his injury. This court said that the payment covered his wages of $1.25 for 30 days and that only, and that his agreement to receive his own wages in satisfaction of the damages resulting from the injury was a nudum pactum and would not bar his recovery, and that his wages were not in dispute; and finally it was said: "But if he received the amount stated, or less than that, in satisfaction of his wages, he would be bound by it, so far as his wages were concerned. But it does not appear that he received anything at all for his damages. We think, therefore, that the court erred in its charge to the jury and in the construction placed upon this instrument. It should have been left to the jury to determine whether or not the wages, as well as the damages, were in dispute; and it was for them to determine whether or not the settlement covered all." In the first place, it appears that this court considered the facts in that case to mean that both the wages and the damages were not intended by the parties to be adjusted by the settlement, and the case might be distinguished on this ground; but, if the distinction can not be made, then the ruling there made obviously overlooked the older decisions of Tarver v. Rankin andBrown v. Ayer, supra, as well as the statute. Even under the view of the majority in the present case, the agreement there being expressly stated, and the smaller amount being paid and accepted, an accord and satisfaction resulted, and that decision is unsound, contrary to law, in conflict with the older decisions, and can not be followed. In Robinson v. LeatherbeeLumber Co., 120 Ga. 901 *Page 882 (48 S.E. 380), as has been previously pointed out by this court, the decision might be distinguished from the older decisions in the two cases of Hamilton v. Stewart, supra, upon the ground that the tender there made was not conditioned upon its being accepted in satisfaction of the debt; but if this distinction is not sufficient, then to the extent that it is in conflict with them it must yield to the older decisions. What is stated in this dissenting opinion is strongly supported by the decisions inRedmond v. Atlanta Birmingham Ry., 129 Ga. 133 (58 S.E. 874), and Burgamy v. Holton, 165 Ga. 384 (141 S.E. 42). It is supported by the plain language of the statute itself. No doubt the Court of Appeals, in the numerous decisions cited in the majority opinion, fell into error because of its failure to recognize a distinction between an executory and an executed agreement as it relates to accord and satisfaction. The Code, § 20-1203, refers exclusively to an executory agreement, and § 20-1204 refers to four distinctly different agreements, the first of which is an executed agreement, and the last three of which are executory agreements. It is there provided that the agreement of a creditor to receive less than his debt can not be pleaded as an accord and satisfaction, in the absence of one of the conditions there stated, to wit: (a) "unless it be actually executed by the payment of the money;" (b) "the giving of additional security;" (c) "the substitution of another debtor;" (d) "some other new consideration." Any one of the four conditions effectually renders the agreement a valid accord and satisfaction. Condition (a) stands on an equality with any of the others in accomplishing this result. However, as pointed out inBrown v. Ayer, supra, in the third headnote, being an executed agreement, it is valid and binding, although there is no new consideration flowing to the creditor to compensate him for his relinquishment of that portion of his claim in excess of the amount paid. If not executed, as pointed out in the decision referred to, it would be a nudum pactum and would not be enforced by the courts of this State. It settles the entire relationship between the creditor and the debtor, whereas conditions (b), (c), and (d) settle only the original claim and leave the existence of the relationship of creditor and debtor on the terms embodied in the executory agreement. Nor does the statute expressly or by the remotest implication restrict its application to any class or character of debts. It applies alike to liquidated and unliquidated, disputed and undisputed debts. *Page 883
While the wisdom of the statute is exclusively the concern of the legislative branch of the government, and can in no case become the legitimate concern of the judicial branch, yet I submit that, when put to this test, the rule as I understand it to be will outweigh the rule as declared by the majority. If the acceptance of the tender, made on the condition that it settles the entire claim, constitutes an accord and satisfaction without regard to whether or not there exists a dispute, then the creditor is left absolutely free to exercise his own judgment with his eyes open as to the result of his action in accepting or rejecting such conditional tender. If he accepts, he knows that his claim is settled. If he is unwilling to thus settle it, he is free to reject it and thereby avoid an incumbrance, when he undertakes to collect his claim, by the record of such payment. It is the judgment of the parties, and they should not ask a court to reverse it and give them more than they gave themselves. Whereas under the rule in other jurisdictions and as applied by the majority here, if that same creditor knew that there had been no dispute he would be authorized to accept the conditional tender, and when he undertakes to collect the remainder of his claim he might be met with a plea of accord and satisfaction and the contention that there had been a dispute, and such a plea would be strongly supported by the evidence showing the express conditions and the acceptance by the creditor of the tender to which they were attached.
For reasons stated in the first part of this dissent, it is not even persuasive argument in support of the majority opinion to state that the Court of Appeals over a long period of time has so ruled and thus has led the general public to the common belief that the rule as so stated is the correct one in this State. If such reasons are of sufficient weight and persuasion as to sustain the adoption of that rule, then they are sufficient to justify this court in reviewing the decisions which conflict therewith in the manner prescribed by the law and in expressly overruling them, in order that the court might thus settle the law and fix the rule beyond uncertainty and doubt, for it is only thus that the law may be changed or made clear if that rule is to be adopted. For the reasons stated, which I firmly believe are sound and inescapable, I have no choice but to dissent. I am authorized by Mr. Justice Atkinson to state that he concurs in this dissent.
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