Potts v. Riddle

5 Ga. App. 378 | Ga. Ct. App. | 1908

Russell, J.

(After stating the foregoing facts.)

We think the court properly overruled the demurrer to the petition, The petition fully and specifically set forth a cause of action against the defendant, upon the contract attached as part of the petition; and the special contention raised, that the contract is unenforceable because it is contrary to public policy, and void, because in violation of the constitution, is without merit/ We think the court, upon consideration of the demurrer, properly construed the contract. Not only is the construction which will uphold a contract as a whole and in every part to be preferred (Fletcher v. Young, 69 Ga. 591), but if there be doubt as to whether the purpose the contract seeks to effectuate is legal or illegal, the contract will be construed as made for a legal, rather than an illegal purpose. Virginia Bridge & Iron Co. v. Crafts, 2 Ga. App. 126 (58 S. E. 322). We do not think that the contract evidences an agreement to do an illegal act, or that it could be thus construed. It is true it is stated in the contract, that Potts is desirous of securing the services of one Will Dews, and' that the plaintiff, Piddle, is on Dews’ bond for his appearance to answer a charge of murder, and that Dews is indebted to Piddle on seventeen monthly notes for $16 each, aggregating $272, and that, to pay these notes, Dews agrees to work with Piddle or at his direction until this indebtedness (presumably for attorney’s fees) is paid. But all of these things- are stated merely as matters of inducement, leading up to the contract, which, when analyzed, is nothing more than an agreement on the part of Potts to purchase fifteen of the notes Dews had given Piddle, aggregating $240, for the sum of $225, $112 of which was to be paid in cash and $113 of which was to be paid the first of January, 1907. In other words, Potts gave Piddle $112, their face value, for the first seven notes, and agreed to give him $113 for $128 worth of the remaining notes, if, on the first day of January, 1907, the grand jury of Clay county, Alabama, had failed to indict Dews, or if the indictment, If one was found, was nol. prossed. The fact that, by the indictment, Dews should be deprived of the opportunity of paying the notes to Potts by his labor is the only thing mentioned which is to release Potts from the obligation of accepting the eight remaining notes and paying Piddle $113 therefor.

The view of counsel for plaintiff in error is that it is very plain, from the reading of the contract, that Piddle was hiring Dews to Potts to labor for him in involuntary servitude. Whether this was the nature of the service or not, the contract disputes it; for it says that Dews (who, from having executed these notes, may be presumed to be of full age) agrees to work with Piddle or at his direction. The statement that Dews agrees does not carry with it the idea that he was forced or- compelled. It is true that the con-*tract would be valueless to enforce this agreement; because it was not signed by Dews. But, considering the statement as a history of the alleged transaction between Biddle and Dews, and construing the language by the rules we have above referred to, it is to' be inferred that Dews’ agreement was legally obtained, and was not' the result of compulsion. One may agree to pay a debt in work as well as in any other way; and damages resulting from the breach of such a contract may be recovered. The mere fact that Potts .agreed to deliver Dews to Biddle by the first day of January, 1907, in ease that he was indicted for murder in Alabama, does not necessarily imply that Dews was in a condition of peonage if he worked with Potts; because the contract is to be given a legal, rather than an illegal construction, and the language used is consistent with the idea that, although Dews may not have paid the .notes which the contract said he agreed to pay, Potts binds himself, in effect, not to offer any obstruction to Dews’ presence at his trial, and is equivalent, on Potts’ part, to an agreement to protect Biddle as surety on Dews’ bail bond. Construed as a whole, the contract means, that Dews owes Biddle a debt that he is perfectly willing to pay in work, it matters not for whom,' provided the debt is extinguished; that Potts wants work done, and is willing to buy the debt evidenced by the notes, taking his risk as to whether Dews will work it out with him or not, and with the understanding that he will not get the work unless it is agreeable with Dews, as Biddle declares it to be. Certainly, there-is nothing in the contract to indicate that Dews would have to work with Potts, or would be forced to work with Potts, or that Biddle binds 'himself to force Dews to work with Potts, contrary to Dews’ own free will. Biddle says, by the representations in the contract, that Dews is willing and agrees to work at and according to his direction. But while, as stated above, the contract was ineffectual to bind Dews to work for Potts (because he was not a party to it), it certainly does not show that it was contemplated by the parties that he should be made to serve Potts contrary to his wishes. The fact that Dews was willing to work, and that Potts wanted work done, may be considered as being the reason why the contract was made; and the fact that Dews might be taken away and carried to Alabama for trial the first of January, 1907, and might be con•victed of murder or some other offense, and thereby be unable to carry out his agreement to work for Potts, may afford the reason. why Potts was willing to pay cash for the first seven notes, and. also supply a reason why he only conditionally agreed to buy the. remaining eight notes; but the core of the contract is purchase, and sale of the fifteen notes. Upon these notes, if they were not paid by Dews in work, Potts might either recover a judgment for the amount due, or a judgment for damages against Dews for failure to comply with his contract to pay the notes in labor, if Dews so contracted. The facts of this case, as evidenced by the contract, do not materially differ from those of Dorsey v. Redwine, 1 Ga. App. 627 (57 S. E. 1073), in which we upheld the collection of a note given for money advanced to pay a fine. The notes-in the present case were given for professional services. See, also, citations in that case.

2. The 6th paragraph of the defendant’s plea, which paragraph was stricken by the court, averred that “the consideration of said alleged contract totally and absolutely failed, for the reason that on or about the — day of March, 1906, the said Dews departed this life.” This paragraph was properly stricken; because it was-entirely immaterial, under our view of the contract, whether Dews-lived until January, 1907, or not. Nothing is contained in the contract which can be construed as a stipulation by which Piddle insured Dews’ life. The contract recited that, as an inducement to-Potts to buy the notes, Dews had agreed to work for Potts, or for any one else as Piddle might direct. But the death of Dews could, not work a failure of consideration; because the consideration must fail as to the time of the contract, and subsequent failure-would afford no defense. 9 Cyc. 371; Dowdy v. McLellan, 52 Ga. 408. In the McLellan case the Supreme Court held that the fact that a note was given for slaves who were made free by the result' of war was no defense to a suit brought upon the note. In the-absence of an express stipulation to that effect, Piddle was not liable for the act of Providence. This stipulation might have been, incorporated in the contract, and provision made for an abatement-of the purchase-price of the promissory notes in case that Dews died before he had an opportunity of paying the notes. But as-Potts did not see proper to have this provision 'incorporated, he created a risk as to himself, the consequence of which he is bound to assume, because he might have provided against it in the contract. 9 Cyc. 628. The plea was properly stricken also, we think, for the reason i that it sought to engraft upon the contract, as one of its conditions, a parol agreement as to a consideration different from, the consideration éxpressed in the contract. Hawkins v. Collier, 101 Ga. 147 (28 S. E. 632).

3. There was no error in refusing to allow the amendment, offered by .the defendant, which is set out in the statement of facts. The amendment which was refused undertook to set up that the contract was procured by the fraud of the defendant, and was therefore void. Not only are the allegations of fraud indefinite, vague, and speculative, but the amendment does not allege that Potts did not know the true terms of the contract at the time that he signed it, or even, aver that he was in fact defrauded. See Manry v. Waxelbaum, 108 Ga. 16 (33 S. E. 701). In Branan v. Warfield, 3 Ga. App. 586 (60 S. E. 325), we held that, as to one who had an opportunity to read a contract, an allegation that it was signed by him without reading it, was fatally defective, in the absence of an allegation that the signer could not read; because no man can be defrauded when he does not know ydiether the paper he signs does or does not contain the real contract, when it is his duty to know, and when, by the exercise of ordinary care-, he can know the contents of the writing. In the present instance the plaintiff in error not only does not allege, in his proposed amendment, that he could not read, but does not allege that he did not read the contract he signed. He merely alleges that he did not have time to get an attorney. He does not allege that he did not know its contents. Construing the amendment, as we must, most strongly against the defendant, in the absence of the allegation of the want of knowledge of the true terms of the contract, the presumption is that he did know the terms of the writing before he actually signed it. If he knew its contents before he signed it, it was immaterial that the plaintiff might have induced him to sign it by saying that he was sick and in a hurry to catch a train. The rulings of the Supreme Court, in apparently similar cases of alleged urgency, went upon the theory that the pretended urgent haste of the proposer of the contract defrauded the signer, because (influenced by the artifice of the proposer of the contract) the opposite party did not have time to read the contract, and, for this reason, as a matter of fact, did not read it. The presumption arising from the amendment in the present ease is that Potts read it. No doubt the amendment could not be put in any stronger form than it was proposed, because-it later appeared from Potts’ testimony that he heard the contract dictated, and signed it as written out by the stenographer. In the absence of an allegation negativing knowledge of the actual terms of the contract, it is to be presumed that Potts knew its real terms. If he did, the fact that he did not have time to get an attorney would make no difference. Reynolds & Hamby Co. v. Martin, 116 Ga. 495 (42 S. E. 796); Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (56 S. E. 1030); Bostwick v. Duncan, 60 Ga. 384; Carroll v. Hutchinson, 2 Ga. App. 60 (58 S. E. 309).

4. No other verdict could have been reached by the jury; and, therefore, the error in directing a verdict for the" plaintiff was harmless. Judgment affirmed.