¶1dissenting. On December 2, 1960, Jack Hirsch sued James T. Collier in the Civil Court of Fulton County for $445.56, an amount allegedly due him by Collier for accounting services. Collier mailed him a check for $50 on December 24, 1960, on the back of which he wrote: “This check to be cashed only if Jack Hirsch CPA accepts it in full settlement and drops his legal action against J. Taylor Collier. . .” Hirsch received the check on December 26, 1960, kept it, and took a judgment against Collier on January 5, 1961, for $445.56 principal, $5.03 interest and $11.50 court costs. On January 1'6, 1961, Hirsch cashed the check which Collier had mailed him, but before doing so altered it by clipping off the words which Collier had written on the back of it. Hirsch kept the $50 — the proceeds of Collier’s check, caused an execution to be issued against him for the amounts recovered by the judgment, and garnisheed his bank account. Collier filed a motion in the Civil Court of Fulton County to set aside the judgment rendered against him which alleges all of the facts mentioned above. Hirsch demurred generally to the motion on the ground that its allegations were insufficient to state a cause of action for the relief sought. He also demurred to it specially on several different grounds. His demurrers were overruled by the trial judge and he excepted and sued out a writ of error to the Court of Appeals. That court reversed the trial court’s ruling. See Hirsch v. Collier, 104 Ga. App. 271 (121 SE2d 318). There the Court of Appeals said: “Defendant contends that his motion pleads facts showing an accord and satisfaction on December 26, 1960, ten days before the judgment was actually taken *857. . . and eight days before default judgment could have been taken. The allegations of the motion are as follows: ‘That [plaintiff] received said check in due course of mail on December 26, 1960, and did not return said check to [defendant], but accepted same and retained same in his possession, and later cashed same at a time unknown to [defendant] at Herman’s, Inc . . . which presented same for payment to [defendant’s] bank . . . where same was paid on January 16, 1961.’ While from these allegations an inference favorable to the defendant could be drawn that the plaintiff accepted the check on December 26, 1960, the pleaded facts do not support such an inference. It is elementary law in this State that pleadings are to be construed against and not for the pleader on demurrer. Therefore, the above allegations cannot be construed to show an acceptance of the offered accord and satisfaction prior to the judgment.”
¶2After that decision was rendered, and before the remittitur was made the judgment of the trial court, Collier amended his motion and alleged in substance the following: Hirsch, on December 26, 1960, received and accepted his check for $50 with the above mentioned words written on the back of it, intending at that time to retain it in his possession for the purpose of reducing it to cash at a later date; that he did retain it in his possession until he cashed it; that receipt and acceptance of such check on December 26, 1960, with the aforementioned intention, was at that time an accord and satisfaction of the claim he had sued on; and that Hirsch by accepting and retaining his check on December 26, 1960, under the aforementioned circumstances, agreed to dismiss the suit which he had filed against movant and not to permit a default judgment to be taken against him. The trial judge sustained a general demurrer to Colli.er’s amended motion and dismissed it. The Court of Appeals affirmed his ruling, Collier v. Hirsch, 106 Ga. App. 652 (127 SE2d 859) and this court granted certiorari to review the judgment rendered by the Court of Appeals.
¶3As I vi'ew the allegations of Collier’s amendment, they materially changed his original motion and supplied the facts which the Court of Appeals held were lacking on its first review of the *858case; and treating the allegations of the amended motion as true, as must be done for purposes of the demurrer, I think they show that an accord and satisfaction of the claim Hirsch sued on was fully consummated on December 26, 1960. See Rivers v. Cole Corp., 209 Ga. 406 (73 SE2d 196). And because of Hirsch’s alleged reprehensible conduct, I do not think he is in any position to contend that Collier was not diligent in defending the suit which he had filed against him. See Citizens Bank v. Todd, 151 Ga. 475 (2) (107 SE 486).