Necessity of consideration.

- Executory agreement by the plaintiff in execution with the defendant to accept in payment less than the whole amount of the debt is not obligatory without a fresh consideration to support it, and mere payment of a part of the sum agreed on will not serve as a consideration. McLure v. McLure, 159 Ga. App. 18, 282 S.E.2d 674 (1981).

Covenant not to sue is not a release nor a present abandonment or relinquishment of a right or claim, but merely an agreement not to enforce an existing cause of action; and, although it may operate as a release between the parties to the agreement, it will not release a claim against joint obligors or joint tortfeasors. Georgia R.R. Bank & Trust Co. v. Griffith, 176 Ga. App. 198, 335 S.E.2d 417 (1985).

Covenant not to sue construed as release if action brought.

- When there is a covenant not to sue, it is important that the parties to the covenant not be sued in fact or in fiction after the agreement has been executed. Otherwise, the substance of the agreement will be construed to be a release from judgment and will act to release all joint tortfeasors. Weems v. Freeman, 234 Ga. 575, 216 S.E.2d 774 (1975).

If a defendant has secured an agreement whereby the defendant is not to be sued, the defendant certainly should not thereafter be sued to judgment. If, in a continuation of the litigation, the defendant is sued to judgment, then regardless of what it is denominated, the agreement definitely cannot be a covenant "not to sue," but must instead be an agreement "not to enforce the judgment" which is subsequently rendered in the case. If the agreement is one "not to enforce a judgment" rather than a covenant "not to sue," all defendants who would otherwise be jointly liable on the judgment are released thereby. Bevill v. North Bros. Co., 168 Ga. App. 97, 308 S.E.2d 215 (1983).

Otherwise valid covenant not to sue does not automatically become a general release in the mere event that a suit is subsequently instituted jointly against the covenantees and others. The preexisting "covenant not to sue" is, as to the institution of the later action against the covenantees, solely a matter of defense, a defense which other tortfeasors do not share with the covenantees. The covenantees may be dismissed and the litigation can proceed without them. Bevill v. North Bros. Co., 168 Ga. App. 97, 308 S.E.2d 215 (1983).

Agreement not to enforce judgment subject to release covenant distinction.

- Distinction between a release and a covenant not to sue also applies to agreements not to enforce a judgment. Georgia R.R. Bank & Trust Co. v. Griffith, 176 Ga. App. 198, 335 S.E.2d 417 (1985).

Breach of contract not to enforce judgment.

- When a creditor obtains a judgment, and the parties agree to settle the judgment for a lesser amount, but the creditor then levies a garnishment to collect the full amount, the debtor may not bring an action for malicious abuse of process, but the debtor may allege a claim for damages for breach of a contract not to enforce a judgment. McKellar v. Associates Fin. Servs., Inc., 168 Ga. App. 9, 308 S.E.2d 410 (1983).

Agreement held not release when judgment would be sought absent compliance.

- Release by agreement was not reached pursuant to O.C.G.A. § 9-13-74 since the agreement contemplated that the full amount of the judgment would have been sought in the event the party failed to comply with the obligations under the agreement. Crim v. Jones, 204 Ga. App. 289, 419 S.E.2d 130 (1992).

Covenant not in full satisfaction of judgment not release of all joint defendants.

- When a plaintiff in a medical malpractice action who was awarded 3.8 million dollars by a jury covenanted with all joint defendants but one not to enforce the judgment in consideration for 2.7 million dollars and abandonment of any further legal action by those defendants, the covenant did not release the noncovenanting joint tortfeasor when the covenant was not made in full satisfaction of the judgment, did not purport to release all the joint defendants, and did not represent an attempt to obtain jurisdiction fraudulently or to discredit the veracity of the record. Revis v. Forsyth County Hosp. Auth., 170 Ga. App. 366, 317 S.E.2d 237 (1984).

Release of judgment good as to all joint defendants.

- Release of judgment against two defendants in favor of one of the defendants, without the knowledge or consent of the other, acts as an absolute release of both, even though the plaintiff stipulates that the release is not to affect collection from the one not a party thereto. Weems v. Freeman, 234 Ga. 575, 216 S.E.2d 774 (1975).

When judgment creditor settled with one of two judgment debtors for less than the full amount of the judgment and did not preclude the judgment creditor from enforcing the judgment against the second judgment debtor, even though the parties demonstrated the agreement was a release, the agreement must be considered a covenant not to enforce the judgment. Georgia R.R. Bank & Trust Co. v. Griffith, 176 Ga. App. 198, 335 S.E.2d 417 (1985).

Consent judgment and agreement not to enforce judgment.

- When a single suit is brought against several joint tortfeasors in a county where one of them is a resident, and the others reside outside the county, a consent judgment and an agreement not to enforce the judgment constitute a finding that the resident is liable and do not deprive the trial court of jurisdiction over the nonresident defendants in the county where the suit was brought. Motor Convoy, Inc. v. Brannen, 194 Ga. App. 795, 391 S.E.2d 671, aff'd, 260 Ga. 340, 393 S.E.2d 262 (1990).

Retention of right to proceed.

- When a settlement agreement between a creditor and one of two guarantors of a note clearly provided that the guarantor's payments were not a full satisfaction of amounts due on the note and that the creditor retained the right to proceed against the second guarantor, the agreement could not be construed as a general release of the second guarantor under O.C.G.A. § 9-13-74 or O.C.G.A. § 13-4-80. Groover v. Commercial Bancorp, 220 Ga. App. 13, 467 S.E.2d 355 (1996).

Cited in Mercantile Nat'l Bank v. Founders Life Assurance Co., 236 Ga. 71, 222 S.E.2d 368 (1976); Marret v. Scott, 212 Ga. App. 427, 441 S.E.2d 902 (1994).

Am. Jur. 2d.

- 30 Am. Jur. 2d, Executions and Enforcement of Judgments, § 249 et seq.

C.J.S.

- 33 C.J.S., Executions, § 233.

ALR.

- Failure to revive judgment against a number jointly, as to some of them, as making applicable the rule that a release of one is a release of all, 160 A.L.R. 678.

Interest on consideration returned or tendered as condition of setting aside release or compromise, 53 A.L.R.2d 749.

Validity of release from civil liability where release is executed by person while incarcerated, 86 A.L.R.3d 1230.

Validity and effect, as between former spouses, of agreement releasing parent from payment of child support provided for in an earlier divorce decree, 100 A.L.R.3d 1129.