Morrison v. Dickey , 119 Ga. 698 ( 1904 )

Lamar, J.

(after stating the foregoing facts.) The jury having found for Dickey on the plea of settlement, it is not necessary to consider assignments relating to other -branches of the case. From an inspection of the general charge; which was included in the record, it does appear that the trial judge in one portion thereof did submit to the jury the question as to whether there was any consideration other than the $750 note; and also instructed them that if there was no consideration for the settlement, it was nudum pactum. But these general observations were inconsistent with the pointed and explicit statement that “ I charge you that that settlement was a complete settlement of the case.” This excluded the theory of the plaintiff that the settlement had been signed after the execution and completion of the contract of sale of March 10, 1903, and was therefore made, not as a part of the second sale, but without consideration. The defendant insists, however, that this error was cured by other portions of the charge. As to this answer see S., F. & W. Ry. v. Hatcher, 118 Ga. 273, where it was said : “The attention of the jury was not specially called to the fact that' it was intended to correct what had been previously said. The jury must take the whole charge as the law, and it is not for them to select one part to the exclusion of another, nor to decide whether one part cures or qualifies another, without being instructed so to do by the judge.”

Morrison testified that the consideration for the settlement of the pending suit was that Dickey was to give a note for $750 and interest. This Dickey denied. In excluding the testimony of Mrs. Morrison that when she signed the settlement her husband told her that Dickey was to give the note for $750, the court said, “ It looks to me as if he was general agent; and he has committed .a fraud on her, she has to bear it.” There may be a clerical error, but as this statement appears in the record it was the expression of an opinion that Morrison had committed a fraud. If, as seems probable, the court stated, “ If he was general agent and if he has committed a fraud on her, she has to bear it,” it was an intimation of the same opinion. The conversation between the husband and wife, or principal and agent, may not have been admissible against Dickey ; but it was prejudicial to the plaintiffs case to suggest that the agent in that conversation was stating to the wife something different from what he had agreed with the defendant.

It is unnecessary to consider any other assignment except that based on the refusal to strike the plea to the effect that the $750 was only to be paid out of profits. The undertaking to pay “$750 as hereafter agreed” was on its face incomplete, and parol evidence was admissible to explain the ambiguity (Civil Code, § 5202) and show not only the date when such payment was to be made, but also the source from which and the condition on which it was to be paid. The time of payment might be fixed by a date, or it might also be referred to the period when profits had been earned.

Judgment reversed.

All the Justices concur, except Simmons, G. J., absent.