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MANGUM v. MILLS et al.
40328.
Complaint. Columbia Superior Court. Before Judge Kennedy.
FELTON, Chief Judge.
On April 15, 1963, this court rendered its decision and judgment in Mills v. Mangum, 107 Ga. App. 614 (131 SE2d 67). This decision is in part as follows: "The verdict for actual damages and interest not being contested by the defendants, however, the judgment will be affirmed on condition that the sum of $500, awarded as punitive damages, be written off. Otherwise the judgment will be reversed." By reason of certain correspondence between the attorneys for the parties the court ruled that the plaintiff in the trial court, through his attorney, had agreed that the $500 awarded as punitive damages, be written off, and adjudged that it be written off, thereby ending the case. Byron B. Mangum, plaintiff below, excepts to this judgment contending that there was no binding agreement to write off the $500 and that his right to another trial should have been adjudged. The defendants in the court below contend that there was a binding agreement to write off the $500 during the time in which a motion for a rehearing in the appeal of the case could be filed and that in view of that fact the plaintiff, Mangum, was precluded from insisting that there was no such agreement or that Mangum could withdraw it. The basis for the contention that Mangum's attorney agreed to write off the $500 punitive damages arises from correspondence between the attorneys for the parties. The correspondence began by a letter from Mr. Hagler, attorney for the original defendants in the trial court, to Mr. Evans, attorney for Mr. Mangum, in which he inquired of Mr. Evans whether he intended to write off the punitive damages. Mr. Evans replied that he had discussed the matter with his client and that the client was "agreeable" to writing off the $500. Mr. Hagler acknowledged receipt of the above letter. On May 2, 1963, Mr. Hagler wrote Mr. Evans enclosing a draft of American Fire & Casualty Company, Mr. Mills' insurer, for $1,172.42 in satisfaction of the judgment. The amount due, after making court cost adjustments, had been agreed upon in the correspondence. The draft was payable to Byron B. Mangum and Randall Evans, Jr., his attorney. Underneath the line in the draft containing a statement of the amount of the draft were the following words: "When properly endorsed on the back hereof this draft becomes and constitutes a release in full." On the back of the draft the following release appeared for signature by the payees of the draft: "Release--Endorsement by payee or deposit in bank for account of payee, is acknowledgment by payee, his, her or their heirs, representatives and assigns, of acceptance of this draft in full settlement of all claims, actions, right of actions and demands that payee has growing out of that certain claim or claims mentioned on the reverse side of this draft, it is also hereby understood and agreed that this payment is not an admission of liability on the part of the policyholder or the American Fire and Casualty Company. (Sign in ink) -------------------- ------------------ ------------------." There also appears on the back of the draft the following: "Notice to bank--Do not honor this draft unless endorsement is identical to payee on face of draft." All of the words of notice to the bank were underlined. Upon receipt of the draft Mr. Evans wrote Mr. Hagler the following letter: "Mr. Gould Hagler, Attorney at Law, 520 Greene Street, Augusta, Georgia. Dear Gould: I return all of the papers in this case herewith. The draft is made payable to Byron Mangum and Randall Evans, Jr., and while ordinarily I would have endorsed his name, by me as his attorney, as the law authorizes, on the back of this particular draft there is a notation to the effect that it is not to be paid until endorsed exactly as shown on the face, which means that you expect me to go to Grovetown and have Byron Mangum endorse the check. I do not feel called upon to do it that way, and inasmuch as you and your client feel that you must deal with my client in order to get a proper receipt for the money, I withdraw my proposal to write off the $500 punitive damages. If within ten days you pay me in cash (not check or draft) the amount of $1,172.42, I will proceed; otherwise consider the $500 not written off. Yours truly, Randall Evans, Jr."
No complete, enforceable and binding contract can be found in the correspondence and surrounding circumstances in which it was written. Implicit in the agreement to write off $500 (assuming but not deciding that being "agreeable" to such a writing off is an agreement to do so), is that it would be done in consideration of the payment of the remainder of the judgment. Otherwise there was no consideration for the agreement. It does not appear that the parties considered the election not to file a motion for a rehearing a consideration for the promise to write off the $500. There was no meeting of the minds of the attorneys, who were acting for their clients, as to the manner in which the judgment was to be paid. Ordinarily such payments are made by check to the attorney alone, or to the client alone, in which latter case the attorney could endorse for the client. If there could be any implied agreement in the circumstances as to how the judgment would be paid it would have to be in one of the above methods. The draft tendered was one suitable to cases where claims are settled without being reduced to judgments, in which event the insurance company or the insured has a right to insist on a receipt in full from the judgment creditor of the insured, releasing the insured from all claims arising from the incident giving rise to the cause of action. In this case a judgment was obtained. There was no claim for personal injury so there was no basis for the demand for a receipt and release from the judgment creditor. The attorney for Mr. Mangum was justified in refusing to accept the draft tendered and in demanding cash whether his doing so be considered reasonable or unreasonable. The contention that Mangum is precluded from contending that the write-off was not effected because he precluded the other party from filing a motion for a rehearing is without merit because after the draft tendered was declined and returned the insurer had ten days in which to pay the judgment in cash and assure the writing off of the punitive damages. This it chose not to do. Hence the present appeal.
The court erred in writing off the punitive damages and in ending the case.
Fulcher, Fulcher, Hagler & Harper, Gould B. Hagler, contra.
Randall Evans, Jr., for plaintiff in error.
DECIDED OCTOBER 2, 1963 -- REHEARING DENIED OCTOBER 23, 1963.
Friday May 22 22:23 EDT


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