
    6726.
    Clark v. Thompson.
    Decided May 19, 1916.
    Certiorari; from Eulton superior court — Judge Pendleton. May 21, 19.15.
    
      McCallum & Sims, for plaintiff in error.
    
      Billon & Burress, contra.
   Russell, C. J.

The unconditional acceptance of a note as payment of a pre-existing account, some items of which are in dispute, is an accord and satisfaction of the account, which precludes the maintenance of an action upon it. Sutton v. Hurley, 12 Ga. App. 312 (77 S. E. 218). However, in the present case there was evidence which, if credible, authorized a finding that the acceptance of the note in question was expressly dependent upon the condition that a certain bank would discount the note, and that this condition was not met. In this view of the ease, the effort to settle the account by note was shown to be nugatory, and the plaintiff was entitled to sue upon his account, even if he had not made an attempt to return the note. The fact that the defendant may be entitled to the possession of his note, and might, by trover, compel its return, can not affect the plaintiff’s right to proceed upon his account, since, according to the answer to the certiorari, it was agreed that the note was not to be a substitute for the account unless it could be discounted at bank. There was no error in overruling the petition for certiorari. Judgment affirmed.  