8 Ga. App. 255 | Ga. Ct. App. | 1910
The Hartman Stock Farm brought a suit upon a promissory note for $933, attaching to its petition a copy of the note. The defendants filed an answer in which they set up that the note was not binding upon them,' for the reason that an agent of the plaintiff represented to them that in the event that any of the purchasers of a certain horse (which, was the consideration of the note), and especially W. C. Abercrombie, W. J. Camp, and T. S. Abercrombie, should fail or refuse to sign the note with them, the note was to be a nullitjr, and not to be delivered to the plaintiff. The plaintiff demurred to the answer, especially upon the ground that it undertook to add conditions to the note, other than those stated, and to vary its terms. The main insistence of the demurrer was that the answer tended to let in parol evidence to vary the terms of the writing which was the basis of the suit. ’
We think the court properly overruled the demurrer to the answer. As was held in Heitmann v. Commercial Bank, 6 Ga. App. 584 (65 S. E. 590), a written instrument “may, by parol or other extrinsic evidence, be shown not to be a contract at all, because of the non-performance of a condition precedent as to which the writing is silent. . . It may be shown by parol or other extrinsic evidence that the writing is not a valid or enforceable legal obligation because it does not possess finality of utterance as a completed, all-comprehensive, and presently operative embodiment of the entire agreement of the contracting parties.” It is manifest, as pointed out in the Ileitmann case, that there is a very marked difference between allowing parol evidence for the purpose of varying the terms of a writing whose execution and delivery are not denied, and allowing proof, even though it be parol, for the purpose of showing that, on account of the non-performance of some condition, perhaps not stated in the instrument, the alleged contract was in reality never created at all. And in that case we cited a number of authorities in this State and from other jurisdictions, in which it had been held that it may be shown, even by parol, that a writing absolute on its face, and whose terms are not disputed, has never become operative as a binding contract, because of a contingency
There was no evidence sustaining that portion of the defendants’ answer in which it was insisted that the three shares alleged to have been sold to W. J. Camp, W. C. Abercrombie, and T. S. Abercrombie were never in fact sold or subscribed for by them in good faith. On the contrary, the plaintiff introduced the following contract, which was signed not only by the defendants, but by W. J. Camp and the two Abercrombies:
•“Douglasville, Ga., Aug. 10, 1905. Name of stallion: German Coach Daemon, No. 636. Hartman Stock Farm agree to sell the above-named stallion for $2,800 to the other undersigned subscribers, who, wishing to improve their stock, agree to pay Hartman Stock Farm $200 for each share in the said stallion. Capitol stock $2,800. Number of shares, 14. Payments to he made in cash, or one third in one year, one third in two years, and one third in three years after Aug. 15, 1905. Secured by joint and several negotiable notes, with interest at seven per cent, per annum.
Hartman Stock Farm. Shares.
A. S. Baggett & Co., ............................ 2
W. J. Camp, ................................... 1
W. W. Selman & Sons,........................... 1
F. M. Yancey Jr.,............................... 2
W. C. Abercrombie & Bro.,....................... 2
J. T. Henley, .................................. 1
C. W. McGouirk, .............■.................. 2
T. S. Abercrombie,.............................. 1
J. H. Brock, ................................... 1
L. G. Camp, :.................................. 1
14”
This contract was pre-existent and coexistent with the note itself, and could have as well afforded the basis for a suit as the note itsélf. It will be noted that this contract was made 5 days prior to tlie purported agreement of August 15, 1905, by which the signers of the latter instrument agreed among themselves to form a stock company. The execution and delivery of this contract of purchase
As we stated above, the plaintiff could have proceeded upon the contract against all the parties, instead of suing on the note, which was not signed by three of those who signed the contract; but the failure of these three to sign the note will not relieve them from the obligation of the pre-existing contract in which they agreed to sign just such a note.
There is considerable testimony in the record in regard to the non-delivery of the horse. The testimony, however, is to the effect that the horse was not delivered to any member of the Douglasville German Coach Horse Company as such. As we have stated above, neither the contract nor the note was entered into by the Douglas-ville German Coach Horse Company, or refers to it. The Hartman Stock Farm is' not a party to the contract or agreement of the subscribers who agreed to form this corporation. There is no evidence that the ITartman Stock Farm ever delegated to any of its agents the authority of forming corporations. In the absence of such evidence, authority to form a corporation can not be implied as one of the duties of one employed to sell a horse. The statement of Johnson that that was one of his duties could not be sufficient evidence of his authority to bind the Hartman Stock Farm in that respect.' But even if a jury could infer all of these things from the evidence,. there is certainly evidence in behalf of the plaintiff that Johnson had no such authority; and therefore it became such an issuable fact as rendered it necessary that the question should be submitted to the jury, if the question was material. In our view of the matter, however, if the horse was delivered to any one of the individuals who signed the contract or the note, in accordance with the terms
The court did not err in refusing to direct a verdict for the plaintiff; because it is never error to refuse to direct a verdict; but we are clear that the verdict should not have been directed in favor of the defendants upon the plea as'filed. ■
The court did not err in ruling out the bill of sale purporting to have been made by the Hartm'an Stock Farm to the Douglasville German Coach Horse Company. There was no evidence that it had ever been delivered to the defendants, or either of them, or that they had any knowledge of such a paper. .