Morrison v. Dickey

• Decision Date: 04 March 1904
• Citation: 119 Ga. 698,46 S.E. 863
• Parties: MORRISON . v. DICKEY.
• Court: Georgia Supreme Court

46 S.E. 863

119 Ga. 698

MORRISON .

v.DICKEY.

Supreme Court of Georgia.

March 4, 1904.

TRIAL—INSTRUCTIONS—REMARKS OF COURT-CONTRACT—PAROL EVIDENCE—PLEADING.

1. The jury must take the whole charge as the law of the case.

2. The jury cannot be expected to select one part of a charge to the exclusion of another, nor to decide between conflicts therein, nor to determine whether one part cures a previous error, without having their attention specially called thereto and being instructed accordingly.

3. The plaintiff's agent and the defendant were in conflict as to the terms of the contract. In excluding the conversation between the agent and his principal, it was error under Civ. Code 1895, § 4334, requiring the grant of a new trial, for the judge to intimate that the agent was committing a fraud on his principal in representing to her that the contract was different from that already made with the other principal.

4. One clause in a written contract providing for the payment of $750 "as hereafter agreed, parol evidence was admissible to explain the ambiguity, and to show not only the date, but the conditions, if any, on which such payment was to be made.

5. It was not error to refuse to strike a plea setting up that, under the agreement between the parties, the $750 was payable out of the profits of the business sold.

(Syllabus by the Court.)

Error from City Court of Atlanta; A. E. Calhoun, Judge.

Action by H. H. Morrison against J. L. Dickey. Judgment for defendant, and plaintiff brings error. Reversed.

It appears that Mrs. Morrison owned a business in Atlanta, known as the "EE-Mi Company, " and on May 29, 1900, through her husband, sold to Dickey a half interest therein, in consideration of $500 cash, and "$750 to be paid as provided hereafter"; Dickey agreeing to pay into the business from time to time, as needed, other sums, alleged in the declaration to be $2,500. Mrs. Morrison having, on December 9, 1902, sued Dickey for the $750, it appears that on March 10, 1903, she sold him the balance of her interest in the business for $2,500. The defendant, among other defenses to the pending suit for $750, filed a plea of settlement, predicated on an instrument dated March 10, 1903, as follows: "Having this day sold my half interest in what is known as the EE-M Co., I agree to have settled the suit I brought versus the said J. L. Dickey. It being a suit against said Dickey for a part of the purchase-money of my first sale of a one-half interest to said J. L. Dickey. [Signed] Hattie H. Morrison." Dickey also contended that the $750 to be paid "as hereafter provided" was only to be paid out of the profits of the business; and the parties were in conflict as to whether that was the agreement. At the trial, on May 14, 1903, the plaintiff moved to strike the same, and filed a bill of exceptions pendente lite to the judgment refusing to sustain the motion, and assigns error thereon. The jury found for the defendant on the plea of settlement, which makes it unnecessary to refer to any of the exceptions, except those relating to that branch of the case. The plaintiff insisted that, while the instrument reciting the settlement was dated March 10, 1903, the same day as the instrument making the conveyance of the remaining half interest in the firm, as a matter of fact "the real date was about ten or fifteen days after the other paper was signed." Morrison testified that he agreed, for his wife, to dismiss the suit if Dickey would give his note; that Dickey said that the suit was in his way, and prevented him from getting money, and that if he could get rid of the suit he could get his affairs arranged all right; that after the contract of sale of March 10, 1903, had been signed, Dickey came back and refused to pay Morrison until "I had delivered this agreement to him to settle the case." Mrs. Morrison testified that she signed both papers bearing the same date, but the shorter paper (settlement) was not signed at the same time that the other one was. "It was several days afterwards, if I am not mistaken." Mr. Morrison was her agent, and she testified that she signed it because he asked her. The court refused to allow Mrs. Morrison to testify that her husband told her that Mr. Dickey was to give his note for $750 and interest, as consideration for the settlement Dickey testified that both the papers dated March 10th were probably not delivered until some days afterwards, but he submitted both papers at the same...