19 Ga. App. 401 | Ga. Ct. App. | 1917
1. It is ably contended by counsel for the plaintiff in error that no parol evidence regarding the insurance transaction should have been admitted, for the reason that the sale of the house and lot and the sale .of the unexpired term of the insurance policy were all parts of the same transaction, as shown by the petition; and that since the bond for titles is in writing, and by law required so to be, it can not be added to or varied by parol evidence. No principle of law is better settled than that which prohibits the admission of parol evidence to add to, take from, or vary the terms of a written contract; and in those cases where the contract must, under the statute of fraudsj be in writing, it has been held that such a contract can not be modified by a parol agreement, even if subsequently made. See Willis v. Fields, 132 Ga.
In order to render parol evidence admissible for the purpose of making complete an incomplete contract, the fact that the contract is incomplete need not necessarily appear upon its face. The surrounding facts and circumstances of a contract are always proper subjects of proof (Civil Code, § 5792), and when fro'm them or the admission of parties it is made to appear that the writing does not embrace all of the agreements, then collateral undertakings not inconsistent with the writing can be shown by parol. Forsyth Mfg. Co. v. Castlen, 112 Ga. 199 (6), 206 (37 S. E. 485, 81 Am. St. R. 28). In the present ease the obligation assumed by the alleged parol undertaking of the defendant is not a new obligation added to the agreement made-by the bond governing the sale of the realty, but grows -out of and relates to’ the incidental sale of the policy of insurance. Section 5791 of the Civil Code provides: “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; so collateral undertakings between parties of the same part among themselves would not properly be looked for in the writing.” See also Carter v. Griffin, 114 Ga. 321 (40 S. E. 290); McCommons v. Williams, 131 Ga. 313 (62 S. E. 230); Shiels v. Stark, 14 Ga. 429 (4).
2. The evidence for the plaintiff having been accepted by the jury in its verdict, this court considers itself bound thereby. Davis v. Kirkland, 1 Ga. App. 5 (58 S. E. 209); Stricklin v. Crawley, 1 Ga. App. 139 (58 S. E. 215); Charles v. Brooker, 1 Ga. App 219 (58 S. E. 218); Daughtry v. S. & S. Ry. Co., 1 Ga. App. 393 (58 S. E. 230). The contention, however, as to whether the evidence in support of the petition conforms to the allegations therein
In the present ease Mrs. Strong brought an action for damages alleged to have been sustained on account of a breach of contract on the part of Mrs. Napier, whereby the latter had agreed upon the purchase from her of the insurance policy, (1) to keep the property insured in the sum of $800 as long as she (the defendant) had an interest in the property; (2) to cause other insurance in that sum to be issued in case the existing policy should lapse or be discontinued; and (3) in any event to notify the purchaser should the property become uninsured. The sole proof, however, offered to sustain such contract and to show its breach was to the effect that when the sale of the policy of insurance was effected, it was understood and agreed by the parties to the sale that the policy had four and a half years to run, whereas in fact the unexpired period was only three and a quarter years, and that the property insured was destroyed by fire during the interval. It is manifest that there was here such a lack of correspondence between the allegations and the proof as would have rendered such evidence inadmissible, upon objection made on that ground. And if such testimony related to a new and distinct cause of action from that alleged in the petition, even its admission without objection would not suffice to sustain the verdict. In the ease of Central Railroad Co. v. Cooper, 95 Ga. 406 (22 S. E. 549), the court said: “No plaintiff can recover upon a cause of action, however just or well sustained by proof, which is totally distinct and different from that alleged in his declaration, and this is so although palpably irrelevant evidence may have been received without objection.” In Burdette v. Crawford, 125 Ga. 577 (54 S. E. 677), it is held: “The plaintiff must recover upon the cause of action laid in the declaration; and a verdict for the defendant is required when the cause of action thus laid is not proved, although another cause of
It is, therefore, clear that the proposition before us resolves itself into the question-of. whether the evidence for Mrs. Strong related to the cause of action alleged in her petition, or whether it attempted-to prove a new and distinct cause from that alleged. If the former be true, then the jury had a right to consider the testimony which was admitted without objection, but if it related to a different cause of action, then, no-matter how admitted, it could not support a legal verdict in the plaintiff’s behalf. There has been an admitted lack of entire harmony in the decisions of our courts upon the difficult subject here involved. The settled rule upon this subject seems to have been admirably stated by Chief Justice Simmons, in the case of City of Columbus v. Anglin, 120 Ga. 785, 793 (48 S. E. 218), in which he says: “He may allege additional facts to show the existence of his primary right, as long as he does not undertake to set up another and distinct right. And he may allege additional facts to show that the defendant has been guilty of the alleged violation of plaintiff’s right. If there is substantial identity of wrong (which necessarily includes identity of the right violated) there is substantial identity of cause of action. This identity is not the same as that required between allegata and probata. A party is required to prove his material
3. The evidence shows that at a date not named, but manifestly long subsequent to the consummation of the sale of the house and lot and of the insurance policy, the agent of the purchaser made request of the agent who had negotiated the sale of the real estate and of the insurance, for the surrender of the policy, in order that it might be “strengthened,” and that the latter replied that he would “look after that.” We do not think the conversation as here outlined was sufficient to constitute a contract which could even be the basis of an action for a failure to increase the insurance, were the present suit maintained for that purpose. The subject-matter of the alleged agreement was in no wise entered into as to the period, rate, and amount of the insurance; and such would have been necessary in order to render a promise of this sort binding. But in no event do we think that such an agreement on the part of E. Tris Napier would bind his alleged principal, Mrs. Napier, unless his authority so to promise be specifically shown. Under the evidence it appears that E. Tris Napier was the special agent of his wife to deliver the bond for title and effect a sale of the policy of insurance. This is manifested by the testimony of the plaintiff’s agent when, at the time of the sale, he interrogated E. Tris Napier as to whether Mrs. Napier had personally signed the bond for title and was informed that she had. The plea and answer of the defendant having itself alleged the sale and transfer of the unexpired term of the insurance policy, thus' impliedly admitting the authority of her agent to make the same, the plaintiff is thus relieved from proving the authority of her agent in so doing. As a
It is contended by counsel for defendant in error that the entire transaction shows such agency as should bind the defendant, but, as already stated, the mere fact that another may so act does not of itself prove the authority to act. The fact that the alleged agent in. this case is the husband of the principal does not in any_ wise alter the rule. In the case of Mickleberry v. O’Neal, 98 Ga. 42, 51 (25 S. E. 933), the court said: “A husband may be the agent of his wife. If he professes to act as her agent, those dealing with him are bound to inquire as to his authority to act for her.” Nor can agency be proved by declarations or conduct of the alleged agent. Americas Oil Co. v. Gurr, 114 Ga. 624 (40 S. E. 780). Therefore we are of the opinion that the ansswer of E. Tris Napier to the' request for the delivery of the policy for the purpose of strengthening it could in no event bind the alleged principal in the absence of proof of his authority to make the 'statement then made by him.
4. There is no reversible error in the portions .of the charge of the court complained of. It is not good practice for the judge, in his charge, to refer to contentions of the pleadings not supported by proof, for while such instructions may correctly state the law in the abstract, the jury might reasonably be misled thereby; but we think it apparent in the present case that the caution given in
5. If, when the sale of the policy of insurance was effected, the defendant, by her agent, expressly stated that the unexpired term thereof extended for four and a half years, and accepted payment on that basis, we think the purchaser had a right to rely upon that statement as forming an integral part of the contract of purchase; it being shown that the seller retained possession of the policy, and it not appearing that the policy was present at the time. In Burge v. Stroberg, 42 Ga. 88, the court said: “While representations made at the time of sale may amount to fraud, the right of action on the breach exists under the law upon the contract, irrespective of such fraud on the part of the seller.” See also Terhune v. Dever, 36 Ga. 648. Nor does it matter that such misstatements on the part of the seller were unintentionally and innocently made (Newman v. Claflin Co., 107 Ga. 89, 32 S. E. 943); nor that they were' made by her agent when the agent was clothed with authority to effect such sale. Alpha Mills v. Watertown Steam Engine Co., 116 N. C. 797 (21 S. E. 917); Darks v. Scudder-Gale Grocery Co., 146 Mo. App. 246 (130 S. W. 430); First National Bank v. Robinson, 105 Iowa, 463 (75 N. W. 334) ; Miller Supply Co. v. Limestone Mining Co., 159 Ky. 696 (167 S. W. 889); Haynor Mfg. Co. v. Davis, 147 N. C. 267 (61 S. E. 54, 17 L. R. A. (N. S.) 193).
Where express representations constituting a part of the contract áre made by the seller as to the existence of a fact, in contradistinction to the statement of a mere opinion or judgment, the purchaser ordinarily has a right to rely thereon. Benjamin on Sales (7th ed.), § 613; North Georgia Milling Co. v. Henderson Elevator Co., 130 Ga. 113 (60 S. E. 258, 24 L. R. A. (N. S.) 235); Springer v. Indianapolis Brewing Co., 126 Ga. 321 (4), 323 (55 S. E. 53); Fletcher v. Young, 69 Ga. 591; Moultrie Repair Co. v. Hill, 120 Ga. 730 (48 S. E. 143); Cook v. Finch, 117 Ga. 541 (44
Judgment affirmed.