119 Ga. 186 | Ga. | 1903
The American Harrow Company, a corporation under the laws of Michigan, brought a suit in the superior court of Greene county against J. G. Dolvin, on a promissory note for the sum of $934.18, besides interest, etc. In the copy note appended to the petition appeared the following provision : “This is given in settlement of old note,” with a specification of the note by number, etc. To this action Dolvin filed various pleas, denying the alleged indebtedness, averring that there was fraud in the procurement of the note, etc. His defense of fraud was stricken on demurrer, and to this ruling of the court he filed no exceptions, so far as the record before us discloses. In the original plea filed by Dolvin, he set up the claim that the note sued on grew out of an agreement between himself and the plaintiff company, to the effect that he should sell harrows for said company and that said company was to pay him the sum of fifteen dollars for every harrow so sold; that, under this agreement, he sold thirty harrows,
In this amendment to the defendant’s answer the execution and ownership of the note sued on were admitted, and he assumed the burden of proving his defense. The defendant also filed a plea in which he alleged that the note sued on was merely intended to stand as security for a final settlement of said business; that the plaintiff, by its agent, agreed to pay the freight and commissions aforesaid and to receive back the unsold machines, in complete
To the foregoing pleas and answers demurrers were filed by the plaintiff, though their precise terms can not be ascertained from the transcript of the record; but it is recited in 'the bill of exceptions that the plaintiff “ demurred to the pleas of the defendant and moved to dismiss the same upon the ground that the pleas set up no valid defense t0‘ the note sued on, which motion the court overruled, to which ruling the plaintiff excepted and now assigns as error.” The trial having taken place in February, and the bill of exceptions having been signed by the judge in July, this exception is too late and can not be considered.
During the trial Of the case the defendant introduced a note, numbered “397 F,” for $1,513, signed by John G. Dolvin, payable to the American Harrow Company, dated February 17,1900, due on or before January 1, 1901, payable at the bank of E. A. Copeland, Greensboro, Ga., with interest at a specified rate per annum, containing a' waiver of homestead and exemptions, and also the following stipulation: “ It is agreed by the maker that no promise or contract outside this note will be recognized, or in any way hinder its payment in full at maturity.”
The plaintiff introduced in' evidence a contract between the defendant and the plaintiff, on the back of which were the following endorsements: “No. 791. Season of 1900. Name, J. G. Dolvin. P. O., Siloam. Shipping Point, Siloam. Railroad, Branch Ga. Ry. County, Greene. State, Ga. Salesman, F. P. Webster. The amount of frt. charges to be paid by J. G. Dólvin and same to be placed to his credit on note.” The contract was as follows:
“ This agreement, made this 17th day of Feb., A. D. 1900, between the American Harrow Company, of Detroit, Michigan, the first party herein, and John G. Dolvin, doing business under the*189 name of John G. Dolvin, at Siloam, County of Greene, State of Georgia, the second party herein, witnesseth as follows : Said first party agrees: 1st. That it will, between Feb. 17th, 1900, and April 15th, 1900, manufacture for and deliver, and does hereby sell, to said second party, on board cars at Detroit, Mich., the goods described, at the prices and terms and in the quantities specified on pages 4, 5, and 6 herein, which are made a part hereof. 2nd. To give second party the right to sell said goods in the usual course of retail trade, during the season of 1900, in the following territory and tributary thereto, viz., Greene, Hancock, and Taliaferro counties. 3rd. That its goods shall be well made and of good material. Said second party agrees: 1st. To purchase said goods of said first party, and to pay it therefor (and for all goods subsequently ordered) the amount agreed upon at the time and according to the terms indicated. 2d. To receive said goods on such delivery, and to pay all freight and charges thereon. 3d. That no order shall be countermanded except at the option of the first party, and then only upon payment of 15^> of the amount of the order, to liquidate damages sustained thereby. 4th. That first party shall not be held responsible for delay in shipping, caused by fire, strikes, or other causes beyond its control. It is understood and agreed : 1st. That this contract shall not be binding on the first party until accepted at its home office in Detroit, but shall be binding on both parties when first party mails at Detroit written notice of its acceptance, addressed to the second party. 2d. That no agreements, conditions, or stipulations, verbal or otherwise, save those mentioned in this contract, shall be recognized. In witness whereof, said parties have hereunto affixed their signatures, the day and year above mentioned.
[Signed] American Harrow Company, by F. P. Webster.
Accept: O. R. B.” John G. Dolvin.
Pages 4, 5, and 6, referred to as forming part of the contract, contained a list of the articles manufactured by the American Harrow Company, and the following were designated as embraced within the contract: “ Fifty Arch Lever Cultivator, with center section, steel axle, wood wheels, 15 tooth, Patent Rev. Points, $30.00; One Grain Seeder Attachment, $13.00. Besides the regular equipment, four sweeps to be furnished with each machine. Terms: payable January 1st, 1901. Or, if paid before maturity,
In another ground of the motion for a new trial complaint was made that the court- committed error in refusing, on motion of plaintiff’s counsel, to rule out the following testimony of W. A. Champion: “ I understood that Mr. Dolvin was to take the plows and sell them on a commission of $15 for every plow he sold. Mr. Dolvin didn’t buy the plows. Mr. Webster told him that if he couldn’t use them, he, Webster, would dispose of them and have him to ship them somewhere else. Mr. Dolvin then gave Mr.
Webster this last note, after Mr. Webster gave him this receipt against the note.” The ground upon which the court was asked to rule out this evidence was that it “ was illegal, because it varied the terms of the written contracts between the plaintiff and the defendant by adding to said contracts verbal conditions at variance with the conditions of said written contracts.”
. The code provides: “ Where any suit is instituted or defended by a corporation, the opposite party shall not be admitted to testify in his own behalf to transactions or communications solely with a deceased or insane officer or agent of the corporation.” Civil Code, § 5269, par. 3. This evidence of Dolvin related to “transactions and communications” which seem to have been had “solely” with Webster, the deceased agent. The presence of Dolvin’s wife and Champion (who was Dolvins’s brother-in-law) would hardly remove the reason of the exclusionary rule. In the case of the Merchants Bank v. Demere, 92 Ga. 735, it was held that Demere could not testify as to a conversation he had with the president of the bank, it being admitted that the latter was dead, although Demere testified that the conversation was had in the presence of certain clerks and directors of the bank, but that he did not know that any of them heard and knew what was said.
Webster, on the first occasion (that is, in February, 1900) was at Dolvin’s house for two days, and the meagre account which • Champion gives of the conversation indicates that he heard very little of what was said, or that he has a very poor memory. Does not the section of the code cited imply that besides the deceased agent of the corporation there should have been some other per
But, without regard to the question of Dolvin’s competency to testify as to transactions with the deceased agent, we think the court erred in refusing to exclude both his testimony and that of Champion, above set forth. When parties enter into an agreement and reduce it to writing, the law presumes that the writing contains the whole contract. Except for fraud, accident, or mistake, parol evidence can not be received to vary the terms of a valid written contract. Even if there were no written contract in this case except the note sued on, which is absolute and imconditional on its face and recites that it is in settlement of an old note, parol evidence could not be admitted to contradict or vary its terms. Lunsford v. Malsly, 101 Ga. 39 (2). The Chief Justice, in the case of Stapleton v. Monroe, 111 Ga. 848, said: “An absolute and unconditional promissory note can not be so changed by evidence of a contemporaneous parol agreement as to engraft upon it a condition.” See also Walton Guano Co. v. Copelan, 112 Ga. 319; Brewer v. Grogan, 116 Ga. 60; Heard v. Tappan, 116 Ga. 930, 934 (3); Edison Electric Co. v. Blount, 96 Ga. 272. Besides these cases, which are taken from the brief of the counsel for the plaintiff in error on this point, citations of authorities to the same effect might be indefinitely multiplied. The view just presented is greatly strengthened by the consideration that by the original contract, as well as by the first note (which is expressly referred to in the note sued on), all stipulations and conditions outside of the writings were expressly excluded. Certainly a man who signs such contracts will be conclusively bound by them, unless by his
But it is contended that the acceptance by the plaintiff of the note sued upon, and procured from Dolvin by Webster, is a ratification of the contemporaneous agreement signed by Webster for the plaintiff. That paper, introduced in evidence by the defendant, was as follows : “ I agree to receipt J. G. Dolvin for note given me to-day, this day Apr. 11, 1901, for $934.18 note due Jan. 1st, 1902. [Signed] For American Harrow Co., By F. P. Webster. Witness: W. A. Champion.” It is also claimed that this paper is ambiguous, and that it may be explained by evidence showing that the note does not mean what it says. The paper on its face appears to be a simple and harmless undertaking to receipt for this note. If it means more, there is nothing in its terms to indicate the ulterior meaning. The court can not create an ambiguity by resorting to parol evidence in order that it may be explained by similar testimony. Maxwell v. Hoppie, 70 Ga. 163 (3). This case follows the opinion of Judge- Warner in Hill v. Felton, 47 Ga. 470. But whatever this paper means, was it ratified by the plaintiff? In the case of Hodnett v. Tatum, 9 Ga. 70, it appeared that Tatum had a promissory note against Hodnett, which Tatum gave to an agent to collect. The agent received in payment depreciated bills and turned them over to Tatum. Tatum objected to receiving the money at par, and the agent insisting that it should be returned to Hodnett, Tatum refused to do so and entered it on the note as received at' ten per cent, discount. On a suit for the balánce appearing due on the note, this court held that “ When a principal, with a knowledge of all the facts, adopts the act of his agent, he can not afterwards impeach his conduct.” In the case of State v. Southern R., 70 Ga. 12 (3a), it is held: “ When the fact of agency is to be proved by the subsequent ratification and the adoption of the act by the principal, there must be evidence of previous knowledge on the part of the principal of all the material facts. If the material facts be either suppressed or unknown, the ratification is invalid.” The ratification was claimed to have resulted from the receipt of money.
In the case of DeVaughn v. McLeroy, 82 Ga. 700, it was insisted that some of the parties had ratified an arbitration and award, one by suing out execution upon the award and the trans
It does not appear that the managers of the plaintiff had any knowledge of the existence of this paper until informed of it by their counsel, or of the parol stipulation sought to be engrafted on the settlement until they learned it from the contentions in this case. And from what follows, it does not seem that they had any reason to suspect the existence of any purpose or intention to nullify the settlement. But whether this agreement to receipt for the note, so harmless on its face, was intended by either party or by both as a device to secure some undisclosed advantage, it is also to be remembered that another cotemporaneous writing, signed by Dolvin, was introduced in evidence by the plaintiff, giving an itemized statement of the settlement had of the old note and of the credits allowed, showing the precise balance for which the new note was given; and beneath the statement is the following, plainly appearing in print: “P. O., Siloam, Ga. 4/11/01. Mess. American Harrow Company, Detroit, Mich. Gentlemen: The above is a correct statement of the full and final settlement of my note, as made with your Mr. F. P. Webster to-day. I have received my note, and have no further claims of any kind against you. [Signed] J. G. Dolvin.” Assuming that Mr. Dolvin was competent to contract, this last written assurance ought to be conclusive on the question under discussion. There is evidently no ambiguity in this document.
For the reasons given and upon the authorities hereinbefore cited in considering the refusal of the court to exclude illegal evidence, we think this charge was erroneous.
Judgment reversed.