City of Atlanta v. Schmeltzer , 83 Ga. 609 ( 1889 )

Simmons, Justice.

Scbmeltzer sued the city of Atlanta for damages. A synopsis of the declaration and of the evidence adduced will be found in tbe official report of the case. The plaintiff recovered, and the defendant moved for a new trial upon several grounds. The only ground of the motion which we think necessary'to discuss is the 5th, which is, in substance, as follows:

Because the court erred in ruling out the testimony of plaintiff that he signed the following agreement, and in refusing to allow defendant’s counsel to prove by plaintiff' that the condition in said agreement had been complied with, and that plaintiff understood when he signed said agreement that a bridge was to be built opposite his property, and in refusing to admit said agreement in evidence, the same having been tendered in evidence by the defendant.

“Atlanta, Ga., Feb’y 8th, 1886.—We, the undersigned property owners on Foster street in the city of Atlanta, hereby agree with each other and with the said city, in consideration of the benefit to accrue to us and our property from the widening and grading of Foster street, and from extending the same through from Calhoun street to Ivy street, that we will give a sufficient amount of the front of our property on said street not exceeding ten feet off of the same on either side, to widen the same to a uniform width of not exceeding sixty feet, in accordance with such plan as the city engineer and city authorities may decide to adopt. We also agree that said street may be brought to a grade by excavating and filling in accordance with the plan and profile to be made and adopted by the city authorities. We will make no claim from the city for compensation for either widening or grading, provided, however, that the city shall remove all fences and buildings that may be necessary, and replace the same in conformity to new line of street, and in as good condition as before removed, and provided that said work is commenced and entered upon in good faith during the year 1886.”

Signed by Fred W. Scbmeltzer and tbirty-four others.

We tbink the court erred in tbe rulings complained of in this ground of the motion. It seems to us that if the plaintiff understood when he signed this agreement that a bridge was to be built by the city over that part of the street opposite his property, and that the hollow or ravine was not to be filled with dirt, the defendant ought to have been allowed to prove it on the trial. If it was the understanding between him and the city that the bridge was to be built, then he was not damaged by the building of the bridge, and he would not be entitled to recover damages from the city on that account.

But it is argued that to have allowed this parol testimony would have had the effect to change or modify the written agreement. "We do not think so. Construing the whole agreement, we think that it is ambiguous, It says, in substance, that in consideration of the benefit to accrue to us and our property from the widening and grading of Foster street, . . we will give ten feet of land on either side of said street to widen the same, in accordance with the plan the city authorities may adopt. We also agree that said street may be brought to a grade by excavating and filling in accordance with the plan and profile to be made and adopted by the city authorities, and we will make no claim for compensation for either widening or grading, etc. It thus appears that the widening and grading, and the excavating and filling, were to be done in accordance with the plan to be adopted by the city. The evidence shows that there was a deep hollow or ravine which ran across Foster street. Now is it clear what the meaning of grading, excavating and filling is, when used with reference to the plaintiff’s property? Do they not need some explanation, when used with reference to the plan to be adopted by the city ? Suppose there had been a river or large creek running across to Foster street, instead of this hollow or ravine, and these same words had been used, would it be contended, under this agreement, that the river or creek would have to be filled ? Clearly not. If the city had built a bridge over the river or creek,, and the plaintiff had sued for damages, would the court have ruled out the understanding of the parties when the agreement was signed, that a bridge was to be built over the river or creek, instead of filling it up ? We would say not. Then why not allow these words to be explained in this suit, when the evidence shows that the ravine is fifteen or twenty feet deep ? Why not allow the parties to show what they understood was the meaning of these words, when used in reference'to this ravine and this particular property ? The record shows that Foster street is of considerable length, and these words could have been used with reference to other portions of the street, in their ordinary meaning, but when applied to this particular part of the street, may have had, with the consent and understanding of the parties, ¡another and quite a different meahingl

We therefore think that the trial judge should have allowed this testimony, and should have let the jury pass upon the question. He should have let the jury say what meaning the parties gave to these words when the agreement was signed. If the plaintiff did not agree that a bridge should be built, then he would be entitled to recover such damages as he has sustained by reason of the building of the bridge. If he did agree to it, then he would not he entitled to recover damages for that reason. If these views are correct, it follows that the court should have allowed the defendant to prove by the plaintiff that he signed the agreement.

If there are any other errors, they are slight, and doubtless the court will correct them on another trial.

Judgment reversed.