SEABOARD CONSTRUCTION COMPANY v. CLIFTON, by Next Friend, 121 Ga. App. 247

Hall, Presiding Judge. The defendant in a negligence case appeals an order denying its motion for

summary judgment which was certified for review. In its pleadings, the defendant alleged that the plaintiff (a minor) was precluded from recovery because of a release given in 1960 by the guardian of the plaintiff’s property to one Amerson, a joint tortfeasor, and approved by the court of ordinary. The release acknowledged payment for the injuries received by the plaintiff in the collision described in the petition.

In response to a request for admission, the plaintiff by and through her father as next friend admitted that a release had been executed through a mutual mistake of the parties but that in 1962 it had been reformed by the parties into a covenant not to sue which the parties thereto had in truth and in fact intended to make in the first instance. The plaintiff amended her petition by attaching the reformed agreement plus the order of the court of ordinary approving the same. There being no dispute as to the execution of the reformed agreement alleged in the plaintiff’s petition, the only question on

summary judgment was whether this agreement was void as a matter of law. In our opinion, the trial judge was correct in denying the defendant’s motion under the authority of Roy v. Ga. R. & Bkg. Co,. 24 Ga. App. 86, 90 (100 SE 46): “A covenant not to sue one jointly liable will not serve to release any one other than the one with whom the covenant not to sue is entered into. Where by accident, mistake, or fraud a writing does not speak the truth, it may be reformed and corrected so that it may be made to speak the truth.

In this case the defendants may introduce in evidence the original writing as well as such other evidence as may be competent by way of attack on the reformed and alleged corrected covenant not to sue, and it is for the jury to say, under appropriate instructions from the court, whether the plaintiff in fact did release as pleaded by the defendant, or whether she merely entered into a covenant not to sue." See also 1Code §§ 37-204, 37-205 and 37-207; Greenfield v. Aetna Cas. &c. Co., 75 Ohio App. 122 (61 NE2d 226).

Argued September 9, 1969 Decided January 12, 1970 Rehearing denied February 24, 1970 The contention that while the writing could be reformed in equity, it cannot be reformed by the original parties to the agreement, is answered by the Supreme Court in Ga. R. & Bkg. Co. v. Roy, 147 Ga. 349, 350 (94 SE 218). There the court deemed equitable relief unnecessary, reasoning that “the paper having been voluntarily reformed already in accordance with the original intention of the parties, a court of equity could do no more than has been done.

It would be a vain thing for a court of equity to solemnly decree that third parties must do that which has been voluntarily done.” As to what effect the voluntary reformation by the original parties will have upon the defendant, the Supreme Court also said that this “is to be determined upon the trial of the case,” quoted by this court in Roy v. Ga. R. & Bkg. Co., 24 Ga. App. 86, 90, supra. This being the law where both contracting parties are sui juris, it would be incongruous to hold otherwise where one of the parties to the agreement was a minor.

The fact that the court of ordinary approved the original agreement setting forth a release would not prevent that court from later approving the voluntary reformation of the agreement into a covenant not to sue. Guardians are authorized to compromise all contested or doubtful claims for or against the wards they represent. Code § 49-219. Any application by a guardian to a court of ordinary for an order to compromise a claim is made out of an abundance of precaution because it is the duty of that court to protect the infant’s substantial rights. Campbell v. Atlanta Coach Co., 58 Ga.

App. 824 (200 SE 203); Carroll v. Atlantic Steel Co., 151 Ga. 378 (106 SE 908, 15 ALR 660). The court of ordinary, by approving the voluntary reformation merely fulfilled its duty in this regard. Judgment affirmed. Bell, C. J., Eberhardt, Pannell, Deen and Evans, JJ., concur. Jordan, P. J., Quillian and Whitman, JJ., dissent. Conyers, Fendig, Dickey, Fendig & Whelchel, Albert Fendig, Jr., for appellant. Alaimo & Taylor, James A. Bishop, Anthony A. Alaimo, Dennis Pierce, for appellee.