Carr v. Louisville & Nashville Railroad , 141 Ga. 219 ( 1914 )

Hill, J.

(After stating the foregoing facts.) The case turns upon the question whether the contract is sufficiently definite to be enforced by‘the widow and daughter of J. D. Carr. The contract is on its face void for uncertainty as against the plaintiffs. It does not even purport to be signed by the Georgia Eailroad and Banking Company or any one authorized by it. Plaintiffs offered to amend the petition by alleging that the “contract was executed on behalf of the defendants by T. K. Scott, and that when the said Scott signed the same he did so as the agent and manager of the defendants,” and that “T. K. Scott, the manager of the defendants’ road, had personal knowledge of the existence of the contract sued on, and of plaintiffs’ rights thereunder, which knowledge came to him at the time of the execution of the contract.” These amendments were properly disallowed. To thus change the contract would be to allow a violation of the rule which forbids the use of parol evidence to add to, take from, or vary a written contract. Civil Code (1910), § 4268.. “A conveyance should be executed in the name of the grantors.” 13 Cyc. 553. But assuming that the contract was made and performed by the parties thereto from the time of its execution in 1898 to the death of J. D. Carr in October, 1907, as alleged in the petition, this, could not, without more, extend the operation of the contract further than to the Georgia Eailroad Company and J. D. Carr. There is nothing on the face of the contract itself to include the plaintiffs, so far as its being a binding contract as to them is concerned. They did not sign it, and had no information concerning it until the fall of 1911, soon after which time they commenced the present suit. And while the petition alleged that the plaintiffs performed the services of operating the pump “under the contract" for about < a month after the death of J. D. Carr, it is obvious that if they had no knowledge of the existence of the contract until about four years later, the services could not have been rendered “under the contract."

The foundation of the suit being the contract, it must be a valid, subsisting contract between the parties thereto, and for the benefit of the plaintiffs, and not such an one as is made by the courts for them. It is the duty of courts to construe and enforce contracts as made, and not to make them for the parties. The plaintiffs in the case must stand upon the contract as made by the parties. And they are not entitled to recover under the allegations of this petition, because it shows on its face that they never performed the services which it is alleged that J. D. Carr, the husband and father, contracted that they should perform; and there is no allegation that they ever offered to perform such services. It is not sufficient that they were “ready and willing" to perform. But the argument is that they were not aware of the existence of the contract until nearly four years after the testator’s death. This can not excuse the plaintiffs. It is nowhere suggested that the defendants ever had the contract, or even a copy or duplicate of it. The plaintiffs as executrixes were entitled to the possession of the decedent’s estate, and were as much bound to know of'its existence as the testator was in his lifetime.

The contract is void as to the plaintiffs, because there is nothing in it specifying any amount to be paid the plaintiffs for their services. It is true the petition alleges that the sum paid Mr. Carr in his lifetime, to wit $35 per month, was paid by agreement between J. D. Carr and the Georgia Railroad Company, which agreement was a fixing between the parties of the compensation to be paid under the contract, and that this agreement makes certain what compensation should be paid, under the implied obligation in the contract to pay a reasonable compensation for the services; but there is nothing in the contract by its terms that would so bind the defendants and the plaintiffs to that sum.. All that can be said of that contention is that that was the sum received by Mr. Carr during his life, not according to the terms of the written contract, but by an extrinsic agreement between him and the defendant company. Such a measure could not apply to the plaintiffs, who desire to take his place; for the contract nowhere specifies such an amount, and this court must construe the contract as it is.

Another uncertainty in the contract is as to the time that the services of the plaintiffs should be performed. There is no fixed time during which the plaintiffs should perform the services stated in the contract. In the case of J. D. Carr the time was stated as for his life, but with the plaintiffs no time is designated. The plaintiffs in error insist that it is for their lives, but this construction is outside the written contract. Is it for their' joint lives ? or until the first one dies ? or the last one ? And' if the latter, is the survivor to get the same compensation that was paid to both? We are left merely to conjecture as to all of this. It is insisted, that, no time being specified, a reasonable time would be the rule, and that the period covered by this suit is within such reasonable rule. But in order to give life and force to all these suggestions, we must read them into the contract, which is itself silent as to the time of performance.

Again, the contract does not designate any specific quantity of water that the plaintiffs are entitled to use. The petition alleges that the plaintiffs operate a gin at.Carr’s Station, and that water to supply the same is necessary; but if so, the contract is silent as to this, a&d it would have to be changed to give it that construction. If the plaintiffs are entitled to the use of water for any purpose, what is the purpose for which it may be so used, and how much— all of it, or half of it? Again we are left to conjecture, and to add to the contract, if we are to give it the construction insisted upon. The rule as to certainty is thus laid down by Chitty on Contracts: "The rule as to certainty is that the agreement must be so certain and complete that each party may have an action on it.” The converse holds equally true, viz., that where a contract is so uncertain and incomplete that neither party can maintain an action on it, it is void for uncertainty. How much water then, we repeat, can the plaintiffs recover for, if 'at all? No amount being specified, the alleged agreement is void under the rule laid down above.

From a review of the whole case, we think the court properly sustained the demurrer.

Judgment affirmed.

All the Justices concur; except Fish, Q. J., absent. '