1. "Ordinarily the plaintiff, in his petition, need not anticipate or negative a possible defense. Where, however, such defense is anticipated, it must be effectually avoided, or the complaint is bad." James v. Maddox, 153 Ga. 208 (111 S. E. 731); Smith v. Scarborough, 182 Ga. 157 (185 S. E. 105). Where the pleaded facts, if proven, would be insufficient as a matter of law to negative the defense of accord and satisfaction, the petition would be subject to an appropriate demurrer. In the absence of any attack as to the sufficiency of the pleaded facts to negative the defense of accord and satisfaction, the plaintiff was entitled to submit to the jury the evidence relied upon by her to negative such defense, along with the evidence relied upon by her to sustain her action for damages. It was, therefore, error for the trial court to grant the motion of the defendant for a separate trial on the plea of accord and satisfaction.
2. Under the above ruling, the further proceedings were nugatory, and no ruling is required on questions 2 and 3, which counsel agree are before the court for decision.
Mrs. Mary Swofford filed a petition against Garland H. Glaze to recover damages in a stated amount for the homicide of her husband, and she further prayed that a certain described release, alleged to have been executed by her at a time when she was wholly incapable of making any important decision, or comprehending her rights in any matter of importance, "be canceled and set aside and held for naught." The defendant filed a plea of accord and satisfaction, and at the trial term filed a written motion to try the issues raised by the plea of accord and satisfaction prior to submitting to the jury "the issues in the main case." The motion to try the plea of accord and satisfaction prior to "the main case" was granted, and to this order the plaintiff excepted pendente lite. At the conclusion of the evidence on the trial of the plea of accord and satisfaction, the court directed a verdict for the defendant. The bill of exceptions assigns error on the exceptions pendente lite to the granting of the motion for a separate trial, and to the judgment overruling the motion for new trial, as amended; it being contended that "the direction of the verdict by the court without submitting the issues to the jury for determination was error harmful "and prejudicial" to the plaintiff for five stated reasons, which in effect amounted to the contention that the court erred in directing the verdict for the defendant because there were issues of fact which should have been submitted to the jury. In the bill of exceptions error is assigned on the judgment entered pursuant to the verdict directed for the defendant on his plea of accord and satisfaction.
Counsel for the parties agree that the following questions are before the court for decision: "1. Did the trial judge commit error in granting the motion for a separate trial on the plea of accord and satisfaction? 2. Did the trial judge err in refusing to submit the case to a jury upon proper instructions and in directing the jury to sign a verdict in favor of the plea of accord and satisfaction? 3. Did the trial judge err in overruling the plaintiff's motion for new trial?"
Frank Lawson and Wheeler, Robinson & Thurmond, for plaintiff.