Scurry v. Cotton States Life Insurance
51 Ga. 624
Ga.
1874
Check Treatment
Warner, Chief Justice.

This was an action brought by the plaintiff against the defendant oh the following instrument:

“Received of James R. Scurry three hundred and seventy-five dollars, same being in payment of insurance in Cotton *626States Insurance Company; this receipt being binding on said company until policy is received.
J. S. RaixVES,
Agent of C. 8. Life Ins. Co., of Macon, Ga.
Baker county, Ga., Sept. 6th, 1871.

On the trial of this case, Raines, thé agent, was offered as a witness for the defendant to prove, amongst other things, that it was the intention and understanding of himself and Scurry at the time of giving the receipt, that it was to bind the company to return the premium if the policy was refused, and to bind the company until the application for policy was acted on by the company. This was fully understood between the applicant and himself and fully talked over. The application was refused by the company. This evidence was objected to by the plaintiff on two grounds: First, because Scurry, one of the contracting parties, was dead; second, because the evidence offered would contradict and vary the terms of the written instrument. The court overruled the objections, and admitted the testimony of the agent, and the plaintiff excepted.

1. By our evidence act of 1866, no person shall be excluded from giving evidence on the trial of any issue in any court, by reason of interest, or from being a party, except where one of the original parties to the contract or cause of action in issue or on trial is dead; in that case the other party shall not be admitted to testify in his own favor: Code, 3854. The parties to the contract or cause of action in issue or on trial, were the Cotton States Insurance Company and Scurry. Raines, the agent, who was offered as a witness, -was not a party to the contract, and had no interest in it. The contract was made between the insurance company and Scurry, who were the parties to it. No corporator of the insurance company, or other person having an interest in that company, was offered as a witness to testify in its own favor against the other party. The witness, Raines, was not one of the original parties to the contract or cause of action in issue or on trial, as contemplated by the statute, and was therefore a competent witness. In the case of Doe vs. Robinson, 37 Georgia Re*627ports, 118, Stamper was a party to the record and interested in the recovery, which depended on a contract made between him and Robinson, who was dead. This court held in that case, that Stamper, the living party to that contract, wras not a competent witness to prove his version of it, because Robinson, the other party thereto, was dead, and could not be heard.

2. Receipts for money may be explained by parol: Code, sec. 3807. * The intention of parties to a contract may differ among themselves. In such case the meaning placed on the contract by one party, and known to be thus understood by the other party at the time, shall be held as the true meaning. Parol evidence is inadmissible to add to, take from, or vary a written contract; but all the attendant and surrounding circumstances may be proved, and if there is an ambiguity, latent or patent, it may be explained; so, if a part of a contract only is" reduced to writing, (such as a note given in pursuance of a) contract,) and it is manifest that the writing was not intended to speak the whole contract, then parol evidence is admissible: Code, sec. 2757. From the evidence contained in the record in this case, Raines, the agent, had no power or authority to bind the company to issue a policy of insurance until the application therefor had been submitted to the company for its acceptance or rejection; and that being so, it was competent for the witness to explain what was the understanding of the parties at the time the receipt was given, by the words contained therein, to-wit: “This receipt being binding on said company until policy is received ” — the more especially as the witness states he did not' have a printed form of the receipt Avith him at the time, but intended substantially to comply therewith to the best of his recollection. The printed form of receipt, as required by the company, contained the words, “in case of non-acceptance of said application, the amount received is to be returned.” In view of the facts as disclosed by the record in this case, Ave affirm the judgment of the court below.

Judgment affirmed.