131 Ga. 300 | Ga. | 1908
This case has been before this court twice heretofore. 119 Ga. 186 (45 S. E. 983); 125 Ga. 699 (54 S. E. 706). The action is founded upon a promissory note dated April 11, 1901, and due on or before January 1, 1902, absolute and unconditional on its face, given by J. G. Dolvin to the American Harrow Company, for $934.18 principal, interest at eight per cent, pe.r annum after maturity, and ten per cent, attorney’s fees, if collected by suit. It contains the recital that “This is given in settlement of old note, No. 3975.” At the time of the execution of this note, one "Webster, an agent of the American Harrow Company, wrote, signed, and delivered to Dolvin, an instrument as follows: “I agree to receipt J. G. Dolvin fox note given me to-day, April 11, 1901, for $934.18, note due January 1st, 1902. American Harrow Co., by F. P. Webster.”
At the same time Dolvin gave to Webster, on a printed form furnished by the latter, the following statement:
“John G. Dolvin.
Debits. Face of note .....................1,513.00
Interest accrued .......................... 21.56
1,534.56
Total debits
1,534.56
■ “ .............................. 13.00
By new note due Jany. 1, 1902 .............. 934.56
“P. O. Siloam, Ga. 4/11, 1901.
“Mess. American Harrow Co., Detroit, Michigan.
“Gentlemen: The above is a correct statement of the full and final statement 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. Tours truly, J. G. Dolvin.”
The plea of mutual mistake, which was held in 125 Ga. 699, at page 706, to be sufficient to withstand the objection, in the nature of a general demurrer, urged against it in its entirety, is there fully set forth (pp. 701, et seq.), and as it is quite lengthy, we will give only the following summary of it here. At the time of the execution of the note sued on and the signing of the other written instrument given on the same occasion (copies of which have just been set out), the defendant contended that his original note given to the plaintiff, and for which the note sued on purports to have been given in settlement, was never intended by the parties thereto to be an obligation on his part to pay the plaintiff an indebtedness, as he never purchased the machines for the purchase-price of which the note appeared to have been given, but had merely received them from the plaintiff to be sold by him on commission as plaintiff’s agent; and that if the original note and contract, by reason of their terms, should be held to indicate a purchase by him of the machines, then he had a complete defense of failure of consideration of the note, as the machines had proved to be entirely unfit for the use for which they were intended. In view of these contentions of the defendant, Webster, plaintiff’s agent, “agreed upon a settlement of the transactions represented by said first note,” and desiring, as in the first transaction when the original note was given, to have defendant execute a note as security for a final accounting by defendant for the machines received by him and the proceeds of the sales of machines made by him, Webster proposed to take the note sued on as representing the value of the machines shipped to defendant, which was the amount of the old note, less the freight charges paid by defendant, and the aggregate amount of collections on sales made
The plaintiff moved “to strike that part of the amended answer which alleges and sets forth that the original contract and note were not what they plainly purported to be, and which attempts to explain or in any way modify said ■ contract and note;” and “to strike, as being irrelevant, that part of the amended answer which refers to any blánk form or forms.” This motion was sustained, and the defendant excepted pendente lite. There was a verdict for the plaintiff “for amount sued upon, without interest or 'attorney’s fees.” The defendant assigns error upon his exceptions pendente lite and upon the judgment of the court overruling his motion for a new trial.
We are unable to perceive any merit in the second assignment of error upon the portion of the charge now under consideration. Counsel for plaintiff in error contend that, “under the facts of this case in any view, if this whole contract was the outcome of mistake on Dolvin’s part only, he should have relief, and a charge to the contrary was error;” and the Civil Code, §3982, is cited to support such contention. In that section it is said that equity may rescind or cancel a written contract “upon the ground of mistake of fact material to the contract of one party only.” The question of mistake of fact was not involved in this case, and the charge under consideration expressly had reference alone to mutual mistake of law.
Judgment affirmed.