Douglass v. Williams Art Co.

143 Ga. 846 | Ga. | 1915

Hill, J.

(After stating the foregoing facts,) The plaintiff must stand or fall by the caserns made by his petition. He does not sue upon a parol contract entered into between himself and' the defendant, and breached by the latter; but he sues upon what he terms “a written agreement” which is set out in the foregoing statement of facts. A contract is an agreement between two or more parties' for the doing or. not doing of some specified thing. There is no difference' between a “contract” and an “agreement.” 1 Words & Phrases (2d series), 171-172. Turner v. Lorillard Co., 100 Ga. 645 (28 S. E. 383, 62 Am. St. R. 345). The paper sued on is lacking in the elements necessary to constitute a valid written contract; and as the plaintiff has elected to stand on this paper, he must fail in his suit. It does not appear from the paper that the plaintiff is a party to it; no consideration is expressed in it, nor any time specified within which it is to be performed. It is generally so lacking in definiteness that it can not be considered as a valid contract between the plaintiff and tlie defendant; nor does the petition allege such facts as, taken in connection with the paper, would authorize the plaintiff to recover. The most that can be said of the paper is that it is a power of attorney authorizing C. Watson Jones as agent of the defendant to “place” tickets bearing defendant’s name with “whom it may concern,” as therein mentioned. But, in that view, no such case is alleged as would entitle the plaintiff to’ recover. In any view of the case as made by the plaintiff, we think that the demurrer was properly sustained, and that the court did not err in dismissing the petition.

The proffered amendment was not incorporated in the bill of exceptions, nor attached thereto as an exhibit properly identified, but the plaintiff in error sought to bring it before this court by specifying it as a part of the record. Under such circumstances, the exception to the order of the court disallowing it can not be considered. Holmes v. Cobb Real Estate Co., 142 Ca. 56 (82 S. E. 496).

Judgment affirmed.

All the Justices concur, except Fish, C. J., and Beclc, J., dissenting.