Gay v. Parish

• Decision Date: 11 July 1912
• Citation: Gay v. Parish, 138 Ga. 399, 75 S. E. 323 (Ga. 1912)
• Parties: GAY . v. PARISH.
• Court: Georgia Supreme Court

75 S.E. 323

(138 Ga. 399)

GAY .

v.PARISH.

Supreme Court of Georgia.

July 11, 1912.

(Syllabus by the Court.)

1.Evidence (§ 444^*)—Parol Evidence Affecting Writings—Erasure.

Where a bidder at an administrator's sale, who failed to comply with his bid, was liable for the difference between the amount of such bid and what the property brought at a resale, and was sued therefor, and, shortly before the time for the trial, gave to the administrator a check having written upon it the words, "In full payment, " of the suit, and the payee caused such words to be erased before indorsing and cashing the check, parol evidence was admissible to show the circumstances under which such check was given and the erasure was made, and to show whether it was in fact given and re ceived in full settlement or compromise of the liability, or only as a partial discharge thereof.

[Ed. Note.—For other cases, seeEvidence, Cent. Dig. §§ 1929-1944, 2049;Dec. Dig. § 444.*]

2.Executors and Administrators (§ 372*)— Sale of Property—Liabilities of Purchaser—Resale.

Where an administrator, under order of the court of ordinary, sold land at public outcry, and the bidder, after frequent urging, failed to comply with his bid, and the administrator thereupon notified him that he would resell the property, the bidder was liable, under the statute, for the difference between his bid and the amount which the property brought at a second sale, although the notice of resale did not expressly state that the bidder would be held liable for such difference.

[Ed. Note.—For other cases, seeExecutors and Administrators, CentDig. §§ 1518, 1527;Dec. Dig. § 372.*]

Error from Superior Court, Jefferson County; B. T. Rawlings, Judge.

Action by H. G. Parish, administrator, against W. S. Cay.Judgment for plaintiff, and defendant brings error.Affirmed.

Isaac S. Peeples, Jr., and Milton C. Bar-wick, both of Augusta, for plaintiff in error.

R. N. Hardeman, of Louisville, for defendant in error.

LUMPKIN, J.[1] An administrator sold property; the terms being cash.The successful bidder failed to comply with his bid.The administrator readvertised the property and again sold it At the second sale it brought less than at the first, and the administrator sued the purchaser for the difference, together with the cost of readvertisement The suit was for $614.15.The purchaser contended that he had settled it for $324.He prepared and gave a check, payable to the administrator individually, for that amount.On the face of this check were written the words: "In full payment.H. G. Parish, Admr., Suit v. W. S. Gay."The evidence tended to show that the administrator refused to receive this check as full payment, or as a full adjustment of the suit, which was to be tried in a few days; but he was anxious to retain the check as a partial payment.There was no conflict in the evidence as to the difference between the two bids.After receiving the check, and before it was cashed, the words quoted were stricken from it.The plaintiff testified that he sought to find the defendant, in order to get the latter to do this; that he could not find the defendant; and that a bank officer or agent made the erasure.He also testified that, after he refused to receive the check in full payment, and stated that he desired it as a partial payment, the defendant expressed a willingness for him to keep it.The defendant contended that he had not agreed for the words to be stricken from the check, and that the plaintiff kept it to consult with heirs of the estate as to receiving it in full settlement, and then cashed it.Headmitted that the plaintiff did not in terms agree to receive it as a full settlement at the time of its delivery, but claimed that it was the amount agreed upon some time before.He denied that it was tendered back to him, or that he agreed for it to be taken as a partial payment.

The words indicating full settlement were stricken from the check before its indorsement.There was no written contract of settlement excluding parol evidence, within what is commonly known as the parol evidence rule, so as to bring the case within the ruling in Southern Bell Telephone & Telegraph Co. v. Smith, 129 Ga. 558, 59 S. E. 215, andPennsylvania Casualty Co. v. Thompson, 130 Ga. 766, 61 S. E. 829.See, also, Cope-land v. Montgomery, 8 Ga. App. 633, 70 S. E. 30.Whether the check was in fact delivered and received as a partial payment, or as full payment, and the circumstances under which the words were erased, were open to parol evidence, the check as drawn stated that...