Dyar v. Walton
| Decision Date | 31 October 1887 |
| Citation | 79 Ga. 466 |
| Court | Georgia Supreme Court |
| Parties | Dyar. vs. Walton, Whann & Company. |
Evidence. Contracts. Fraud. Equity. Mistake. Negligence. Before Judge Fain. Bartow Superior Court. January Term, 1887.
Reported in the decision.
M. R. Stansell, for plaintiff in error.
R. B. Trippe; A. S. Johnson, for defendants.
Dyar, having been an agent for selling fertilizers on time for cotton, and for collecting the cotton when due and forwarding it to his principals, settled up with them on July 5th, 1882, gave his four notes under seal for the balance they claimed, aggregating $356.55, each note concluding with a mortgage upon realty as security for its payment; and the notes having matured, he resisted aforeclosure of the mortgages, contending that the real balance against him was only $29.55. The notes all bore interest from date, and promised ten per cent. additional for attorneys\' fees. Two of them were due and payable November 1st, 1882, and two on January 1st, 1883. He set forth his defence by what he denominated an equitable plea, and sought to uphold it chiefly by his own testimony. He contended that he was unprepared for the settlement; that he was absent from home at his plantation, pressed with other business, and his books and papers were not at hand; that he was too unwell to make or examine the calculation; that the agent who represented the other party in making the settlement was urgent and pressing to close the matter up; that said agent did not know how the account stood, save by the account which he had with him, and this did not embrace the particulars or details of the account, but wa3 only a memorandum or partial statement, and that the agent said he would on returning to Atlanta, where his principals\' books were, send to Dyar an itemized account, from which and from Dyar\'s books and papers the true balance might be ascertained, and if the notes and mortgages were for too much they should be credited down and stand only for the true debt; and that with this express understanding he, Dyar, went into the settlement, allowed the agent to make the calculation, trusted entirely to the calculation and to the agent\'s promise that errors should be corrected, and executed the paper accordingly. He further alleged that the agent declined to leave with him the partial account or the calculation, and did not send the itemized account; and that he, Dyar, on examining his own books and papers soon afterwards, ascertained that errors had been committed by which the balance against him was raised from $29.55 to $356.55. These errors consisted in not giving him credit for commissions, $150.00, in charging him with too much cotton, $39.00, and in charging him with uncollected notes payable in cot-ton by purchasers of fertilizers, $138.00. These notes were discussed at the settlement, the agent saying that Dyar was liable for them. On the foregoing facts, he contended that the mortgages were the result of fraud, artifice and mistake, and prayed that they might be set aside as void, or credited down to his real indebtedness, and foreclosed for that sum only.
At the trial he was his own principal witness, and most of his testimony being excluded, the jury found against him. He moved for a new trial on more than twenty grounds, all of which were overruled. Numerous as they are, they are all rooted, at last, in the theory that though the account wa3 closed by settlement, it is still open. The defence, when analyzed, resolves itself into an effort to vary a written contract by parol, and to shun the consequences of gross negligence. If at the time the notes and mortgages were given there was an agreement entered into, that they should be varied by the result of subsequent examination, that agreement ought to have been embodied in the written contract, or in some other writing whereby to establish it. The omission to do either is decisive of this branch of the defence. There is no allegation in the plea, and no indication in the evidence, that this agreement was intended to be embraced in any writing, or that it was left out by fraud or mistake. Its effect, if allowed to have any, would be to overrule the writings executed as the result of the settlement, and to reopen the settlement altogether.
Sawyer vs. Vories, 44Ga. 662; Cutis vs. Johnson, 49 Id. 370; Henderson vs. Thompson, 52 Id. 149; Howard & Soule vs. Stephens, Id. 448; Alston vs. Wingfield, 53 Id. 18; Rodgers vs. Rosser, 57 Id. 319; Wynn, Shannon da Co. vs. Cox, 5 Id. 373; Logan vs. Bond, 13 Id. 192; Wyche vs. Winship, Id. 208; Griswold vs. Seott, Id. 210; Gamble vs. Knott et al., 40 Id. 199; Newell vs. Stiles, 21 Id. 118; Simmons vs. Martin, 52 Id. 570; Delaney vs. Anderson, 54 Id. 587; Scaife vs. Beall, 43 Id. 333; Smith vs. Newton, 59 Id. 113; Mitchell vs. Insurance Co. 54 Id. 289; Sims vs. Crawford, 56 Id. 31; Haley vs....
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