Hyman v. Warren County Fertilizer Co.

28 Ga. App. 687 | Ga. Ct. App. | 1922

Jenkins, P. J.

(After stating the foregoing facts.) Section 5791 of Park’s Code provides as follows: “ If the writing does not purport to contain all the stipulations of the contract, parol evidence is admissible to prove other portions thereof not inconsistent with the writing.” The instrument quoted is primarily a receipt; but even though it be such in form, if it embodies also the terms of an. agreement, it must be treated as a contract and subject to the rules governing ordinary contracts in writing. Southern Bell Tel. Co. v. Smith, 129 Ga. 558 (59 S. E. 215). But especially, however, since it is primarily a receipt and only incidentally can be taken to embody other stipulations, the section of the code just quoted should certainly have the fullest application. Barclay v. Hopkins, 59 Ga. 562. Still, in order to give operation to this rule, it must not only appear from the instrument itself or from the attendant circumstances that the writing, treated as a contract, is incomplete, but that the collateral parol agreement which is invoked does not in any way conflict with or contradict the stipulation actually contained in the writing. Forsyth Mfg. Co. v. Castlen, 112 Ga. 199 (6) (37 S. E. 485, 81 Am. St. R. 28); Brosseau v. Jacobs’ Pharmacy Co., 147 Ga. 185 (2) (93 S. E. 293). We do not think that the receipt can possibly amount to a contract full and complete within itself, so as to govern all the terms of the pledge. It appears that the pledge of the cotton was made at the plaintiff’s request, in order to secure a past-due note, but under the terms of the receipt the delivery of the cotton manifestly did not amount to a payment, but constituted a pledge, and the pledgee was not permitted to sell immediately the property given as security, but under the express terms of the receipt the cotton was required “to be held.” How long this was to be, what extension of credit was thus allowed the defendant in consideration of the security given, is not disclosed. While it does appear from the terms of the instrument that, when the cotton should be thereafter sold, its proceeds should be applied as a payment on the note, this is not inconsistent with the defendant’s contention that, in consideration of the giving of such security, the defendant would at that time be entitled to receive a specified credit of not less than the amount actually claimed, to wit, $700. The terms of the incomplete agreement as embodied in the.receipt not being inconsistent with such alleged understanding, we think the testimony should have been submitted for the consideration of the jury.

Judgment reversed.

Stephens and Hill, JJ., concur.