132 Ga. 503 | Ga. | 1909
One ground of the motion for new trial complained that the court erred in holding and finding, in effect, that the contract of sale was not modified, as to the time expressed in it for its completion, by the following words in red lines on the heads of the letters by which the contract was made: “All agreements are contingent upon strikes, accidents, and other delays beyond our control.” If a contract in writing is plain and clear and unambiguous in its terms, it is not subject to modification by a statement in a letter-head printed at the top of the paper, which is not incorporated into the contract and is inconsistent with it. Even where a printed form of contract is used but terms are written into it which are at variance with the printed matter, the writing will control. As stated in the Civil Code, 1895, §3675, par. 6, “when a contract is partly printed and partly written, the latter part is entitled to most consideration.” The expression, “latter part,” as here used, means the written part. If printed matter which forms a part of the contract, then, must yield to written terms inconsistent with the words printed, a fortiori a-mere printed statement in a letter-head, which does not form an integral part of the contract at all, can not override or -modify distinct terms of the contract with which it conflicts.
In Summers v. Hibbard, 153 Ill. 102 (38 N. E. 809, 46 Am. St. R. 872), a contract was made for the delivery of certain bundles of sheet-iron at specified times and prices. The vendors failed to deliver at the times agreed upon. The vendees at a later date bought other iron for which they were compelled to pay a higher price, and brought suit for damages against the vendors. The contract was made by letters passing between the parties. At the top of the letter-heads of the vendors were the printed words, “All -sales subject to strikes and accidents.” It was held: “Printed matter in a letter-head forms no part of the written letter on the sheet, and will not qualify an absolute contract which results from an acceptance of an offer by such letter. . . If a party contracts, unconditionally, to sell and deliver, at a specified time, goods to be made in his mill, the breakage of his mill will not excuse performance or bar a
In the present case the defendants wrote to their broker in New Orleans, authorizing him to sell 200,000 yards of sheeting, of two kinds described, to be delivered “25,000 yards weekly of each, commencing Feb. 1st, delivery in New Orleans.” He was instructed to give defendant’s letter to the plaintiffs and say to them that they might write an acknowledgement, and that would be all the contract defendant required. It was alleged by the plaintiffs and admitted by the defendant that the former did duly acknowledge the letter, and thus complete the contract for the goods at the prices named. This closed a distinct and unambiguous contract. It fixed the time and place of delivery. It needed no aid from circumstances to construe it or arrive at its meaning in those respects. Neither was there any question of bringing home notice of some fact by means of printed statements. A positive statement that goods sold shall be delivered at a time specified in the written contract is not in harmony with a statement that “All agreements are contingent upon strikes, accidents, and other delays beyond our control.” One declares definitely that delivery shall be at a time mentioned; the other, that delivery shall not necessarily be at a definite time, but shall be contingent, not only upon strikes, but also upon accidents and other delays beyond the control of the vendor. The written agreement was specific; the printed notice declared that the time of delivery might be contingent and indefinite. This is not construction; it is modification. If the written statement of the time of delivery is to he made subject to modification by other writing or printing, at least the modifying statement should be embodied
Judgment affirmed.