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Lawskills.com Georgia Caselaw
NELSON, FARBER & FRANSON, INC. v. BEN HYMAN & COMPANY, INC.
46924.
Action on account. Fulton Civil Court. Before Judge Camp.
HALL, Presiding Judge.
Defendant in a suit on account appeals from the dismissal of his counterclaim for interest on a note executed by the plaintiff in 1965 and on which the principal was fully paid in 1969.
While the undisputed evidence shows that the parties arrived at an accord and satisfaction, this affirmative defense was neither pleaded nor raised by written motion. See Rivers v. Cole Corp., 209 Ga. 406 (73 SE2d 196); Thompson v. Hecht, 110 Ga. App. 505 (139 SE2d 126); Catalina, Inc. v. Woodward, 124 Ga. App. 26 (182 SE2d 921); Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342 (173 SE2d 723). For this reason, the trial court erred in dismissing the counterclaim.
PANNELL, Judge, concurring specially.
I concur in the judgment of reversal under the authority of Standard Accident Ins. Co. v. Ingalls Iron Works, 109 Ga. App. 574 (136 SE2d 505), decided under the summary judgment procedure which has been neither overruled, criticized, disapproved or distinguished by this court.
Barwick, Bentley & Binford, Gilbert B. Meredith, M. Cook Barwick, for appellee.
Fine & Block, Craig R. Goodman, for appellant.
ARGUED FEBRUARY 1, 1972 -- DECIDED FEBRUARY 29, 1972 -- REHEARING DENIED MARCH 17, 1972.
Friday May 22 15:01 EDT


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