
    Garner, executor, et al. v. Garner et al.
    
   Fish, C. J.

Plaintiff brought an equitable action on a bond, and for the setting aside of a conveyance alleged to be fraudulent. Defendants’ answer set up an accord and satisfaction, which they averred absolved them from all liability not only on the bond but also on certain notes held by plaintiff, for the cancellation of which they prayed. On the trial the plaintiff introduced evidence tending to show liability of the defendants on both the bond and the notes, and that no accord and satisfaction had been had as to either. The evidence submitted by defendants tended to establish an accord and satisfaction as to their liability on the bond, but there was no evidence to show that it covered their liability on the notes, but, on the contrary, it conclusively appeared that the notes were' executed more than seven months subsequently to the alleged accord and satisfaction. The jury, in rendering a verdict by answering questions agreed upon by counsel and propounded by the court, answered, in effect, that there had been an accord and satisfaction which applied to both the bond and the notes. Whereupon a decree was entered that defendant owed plaintiff nothing on the bond or on the notes. Plaintiff’s motion for a new trial, on the ground that the verdict was contrary to the evidence and without evidence to support it, was overruled, for the reasons, as recited in the order, that the “notes were not . . put in controversy or litigation by the pleadings,” and, “as pleadings can not be dispensed with by agreement, the finding of the jury as to'said notes amounted to nothing — .- there being . . ample evidence to sustain said verdict as to all matters that were in controversy by the pleadings.” Held, that the issue of defendants’ liability on the notes was raised by the answer, and that the court erred in not granting a new trial.

Submitted February 14,

Decided August 11, 1908.

Equitable petition. Before Judge Roan. Gwinnett superior court. February 2, 1907.

Hulsey & Field, for plaintiffs.

Samuel J. Winn and F. G. Fosler, for defendants.

Judgment reversed.

All the Justices concur.  