
    22379.
    MEEKS v. MOULTON.
    Decided November 16, 1932.
    
      
      Ealtte B. Bell, Julian F. Urquhart, for plaintiff in error.
    
      Grady Gillon, contra.
   Hooper, J.

L. -D. Moulton brought suit in a municipal court against C. M. Meeks upon an open account for $40. In the trial of the case Moulton prevailed, and by certiorari Meeks carried the case to the superior court. The judge of the-superior court overruled the certiorari, and on this ruling the defendant in the court beloAV assigns error in his bill of exceptions. Certain exceptions to' the answer of the trial" court are not insisted upon or argued in the brief of counsel for the plaintiff in error.

The account sued on was for a meat-box, which, it is contended, was sold to the defendant along with certain other store fixtures. The plaintiff and one Maynard both swore that the defendant bought the meat-box, and that the plaintiff could have sold this meat-box to another after the sale to the defendant, but declined to do so, because the defendant had bought it. The defendant swore that he did not buy the meat-box. This formed an issue of fact which the jury determined in favor of the plaintiff.

The record shows that the defendant, after paying off a mortgage on the property for $58, gave the plaintiff a check for $59.50, marked “in full to date.” This amount did not include payment for the meat-box, and this evidence was introduced not for the purpose of showing that the meat-box had been paid for, but to show that the defendant did not in fact buy it, and that he had paid for all that he had bought. The defendant makes no claim that he had paid for this article, but claims that he did not buy it; and whether he did or not was the sole issue between the parties.

There was no evidence that prior to the giving of the check there was any dispute between the parties as to the amount due, and, as stated in Edwards Bottling Works v. Jarnagin, 11 Ga. App. 163 (74 S. E. 1004), “It is only where there is a dispute as to the amount due, and one party tenders and the other accepts the check reciting that it is in payment in full of a demand, and the check is subsequently paid, that the reception and retention of a check can be set up as an accord and satisfaction.”

There was evidence to support the finding of the jury in favor of the plaintiff, no error of law is shown, and the court did not err in overruling the certiorari.

Judgment affirmed.

Broyles, G. J., concurs. MacIntyre, J., not presiding.  