Anderson v. Cavanaugh & Bearden

Decision Date11 June 1915
Docket Number5931.
Citation85 S.E. 606,16 Ga.App. 446
PartiesANDERSON v. CAVANAUGH & BEARDEN.
CourtGeorgia Court of Appeals

Syllabus by the Court.

A contract reciting that it was "for the delivery of actual cotton," and was "not to be settled by the price of futures," whereby one person agreed, for and in consideration of the sum of $1 in hand paid, to sell to another, for delivery at a place named, at any time at the option of the seller between October 1st and November 30th of that year, 25 bales of cotton, to average 500 pounds per bale, of a specified grade, at the price of 10 3/4 cents per pound for that grade, with deductions and additions for other grades, according to the differences in effect on the day of delivery, classification and weight to be settled at the agreed place of delivery, which is signed by the seller, and upon which the buyers entered the following signed acceptance: "We accept the above contract subject to the conditions and obligations as therein stated"--was mutually binding, unconditional, explicit, and complete as to its terms. Gates v. Freeman & Reeves, 11 Ga.App 345, 75 S.E. 265. See, also, Hamby v. Truitt, 14 Ga.App. 515 (1), 81 S.E. 593; Luke v. Livingston, 9 Ga.App. 116, 70 S.E. 596; Phillips v. Riser, 8 Ga.App. 634, 70 S.E. 79; Lundy v. Livingston, 11 Ga.App. 804-805 (3), 76 S.E. 594. The demurrer, on the ground that the contract was unilateral, was therefore properly overruled.

The proffered amendment, which was rejected by the court, is not set forth either literally or in substance in the bill of exceptions, or attached thereto as an exhibit, and therefore forms no part of the record in the case, and this court cannot consider what purports to be a copy of it which is embraced in the transcript of the record sent up by the clerk of the court below. "Where exception is sought to be taken to the refusal of the court to allow such an amendment it should be set forth, literally or in substance, in the bill of exceptions, or attached thereto as an exhibit. An amendment which is offered, but which the court declines to allow filed, does not become a part of the record in the case, and this court cannot consider what purports to be a copy of it appearing in the transcript of the record." Taylor v. McLaughlin, 120 Ga. 703-706, 48 S.E. 203. "The rule is well settled that where a party offers an amendment to his pleading, and the judge declines to allow it, the proffered amendment cannot be specified as record." Schaeffer v. Central of Georgia Railway Co., 6 Ga.App. 282, 283, 64 S.E. 1107, and cases there cited. Aliter, if the amendment had been allowed and filed and was thereafter stricken by the court. McCall v Herring, 116 Ga. 235, 42 S.E. 468.

The contract for the breach of which the plaintiff sought damages was mutually binding, and according to its terms no demand for the delivery of the property described in the contract was necessary as a condition precedent to the bringing of the action. Lundy v. Livingston, supra, and cases there cited.

The contract sued upon was by its terms between the plaintiffs and the defendant alone, and there was no error in excluding parol testimony tending to vary its terms by showing that the instrument in fact covered, concerned, or related to an agreement between the plaintiffs and a person other than the defendant in whose behalf or as surety for whom the defendant in fact acted in subscribing her name thereto.

There was no error in excluding testimony that the seller understood that, when she signed the contract sued upon either party thereto could discharge the same at any time during the life of the contract by paying the difference between the price of futures and the contract price of cotton as stated in the contract. The contract was in writing, was plain and unambiguous, and parol testimony was inadmissible to ingraft thereon an agreement tending to destroy its...

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