Westbrook v. Griffin

24 Ga. App. 808 | Ga. Ct. App. | 1920

Luke, J.

Where only a part of a contract is reduced to writing and it does not purport to contain all the stipulations of the contract, parol evidence would be admissible to prove other parts of the contract or to fill blanks in the writing not inconsistent with the writing itself. See Civil Code (1910), § 5791; Forsyth Manufacturing Co. v. Castlen, 112 Ga. 211 (37 S. E. 485, 81 Am. St. R. 28); Bond v. Perrin, 145 Ga. 208 (88 S. E. 954). The petition in this ease, being a suit upon a contract partly in writing and partly in parol, and the parol part not being inconsistent with the writing, set forth a cause of action, and was not subject to the general demurrer which was sustained by the court.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.

The demurrer was on the following grounds: (1) The petition does not clearly, fully, and distinctly set forth a cause of action. (2) The plaintiff states that there was an oral contract, and attaches to the petition a written contract; hence he can not recover on the oral contract set forth. (3) The plaintiff sues on an oral contract and sets out what he calls a memorandum of a contract in writing with P. B. Williford and T. B. Westbrook, and it is this memorandum that is alleged to have been transferred by Williford to Westbrook; therefore the plaintiff fails to show any right to recover on the contract sued on in his own name. (4) There is a misjoinder of parties plaintiff, it being alleged in the petition that the contract was made with Williford and Westbrook, and no legal assignment of the contract being set out. (5) There is no sufficient description of the property, and the contract is therefore void. (6) Paragraph 2 (which states the contract) is demurred to on the ground that the description therein set out is too indefinite and vague to be the basis of a recovery. (7) The allegation as to the sale to Shipp is demurred to, and it is asked that the exact date of the sale be set out. The court adjudged that “said demurrer” be sustained and the case be dismissed.

Maynard & Williams, for plaintiff. Wallis & Fort, for defendant.