58 Ga. App. 771 | Ga. Ct. App. | 1938
George Carroll, as administrator of the estate of David Waxelbaum, deceased, sued Joseph Waxelbaum, “for the use of Mrs. Elizabeth W. Waxelbaum,” on a contract entered into by David Waxelbaum and the defendant. The only exception is to the judgment overruling the general demurrer to the petition. Eor the purposes of this decision the following statement of the case made by the petition is sufficient: On March 27, 1929, “David Waxelbaum departed this life a resident of Eulton County, Georgia.” On September 13, 1937, George Carroll duly qualified as administrator of the estate of David Waxelbaum, and is now acting as such administrator. On March 4, 1905, David Waxelbaum and Joseph Waxelbaum entered into a contract a copy of which is attached to the petition. David Waxelbaum ivas survived by his widow, Elizabeth W. Waxelbaum, “who has not remarried and is now in life. After the death of’David Waxelbaum, and until July 1st, 1932, the defendant made the payments of $25 per month, specified in said contract, to Elizabeth W. Waxelbaum, but commencing July 1st, 1932, and through December 1st, 1934, the defendant paid the said Elizabeth . . only $15 per month. The defendant has made no payments . . on the monthly instalments commencing January 1st, 1935, through October 1st, 1937. So it is that the defendant has breached his contract in failing to pay the full monthly instalments between July 1st, 1932, through
The defendant demurred to the petitioaa, on the following grounds: 1. It “sets forth no cause of actioar against this defendant.” ' 3. It appears from the petition and the copy of the
Was the contract a nudum pactum? Subsection 4 of § 20-704 of our Code reads: “The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.” Subsection 5 of the same section is: “If the construction is doubtful, that which goes most strongly against the party executing the instrument, or undertaking the obligation, is generally to be preferred.” In 6 R. C. L. 847, § 236, this statement appears: “It has been laid down as elementary law that if two clauses of a contract are so totally repugnant to each other that they can not stand together, the first shall be received and the latter rejected.” To the same effect is 13 C. J. 535, § 497. In Newton v. Roberts, 36 Ga. App. 156 (6) (136 S. E. 98), this court said: “In the instant case the negotiable promissory notes sued on recited that they were executed for ‘value received.’ Further on in each note was the statement: ‘This note given for services, love and natural affection.’ Conceding, but not deciding, that love and natural affection alone are not sufficient consideration to support the notes, they are supported by the other considerations recited therein, to wit, for ‘value received,’ and for ‘services;’ and the words ‘love and natural affection’ should be treated as mere surplusage.” The contract in the instant case begins: “I, Joseph Waxelbaum, for and in consideration of the love and affection that I bear to my brother David Waxelbaum, and in further consideration of the settlement of a controversy between myself and my said brother as to a claim he has made against the Waxelbaum Company, I hereby covenant and agree,” etc. “Compromises of doubtful rights are upheld by the public policy of this State and by the