McCommons v. Williams

Fish, C. J., 1, 2. There are many points of controversy, but the case revolves about one central question: Could the defendant prove that it was agreed between the parties that he could continue to sell goods in the stock until January, 1907, the written agreement being in November, 1906, or was the written contract so complete and unambiguous on its face as to preclude proof of a parol agreement on the subject? We think that it was competent to make such defense. The defendant was conducting a mercantile business of quite large proportions in a town, having stock -estimated at from $50,000 to $75,000 in value. The contract of sale to the plaintiffs was dated November 16, 1906. It employed the words, “the parties of the second part hereby buy the stock of general merchandise” etc., but it was evident that it was not intended to pass title immediately by the contract, but that it was an agreement to sell and deliver. Stock was to be taken, beginning January 1, 1907, and payment was to be made partly in cash and partly by notes, “at the time the stock is turned over.” The price was to be seventy-five per cent, of actual cost, except that shopworn goods, and goods and fixtures which had deteriorated, were to be valued at their actual worth, to be agreed upon by the parties; and as to damaged or worn fixtures seventy-five per cent, of. their actual value was to be agreed on. The vendor, before payment, was to produce satisfactory evidence that he had a right to sell; and “cost of taking stock, in order to make this sale,” was to be borne by the seller. From the date of the contract to the time provided for beginning to take stock, and thus to ascertain in detail the goods and their price, was about a month and a half. Nothing was expressly stated as to what should be done as to selling or closing the store in the meantime. The contract evidenced the intention of the purchasers to continue to conduct business at the same stand. Was it the intention of the parties or the plain meaning of the contract that, during the interval, named, business should cease, the store be closed, and the deteriora [318] tion and loss resulting from such a condition for six weeks should take place? It is rudimentary law that parol evidence can not generally be admitted to contradict or vary the terms of a written contract. Civil Code, §5201. But if the writing is ambiguous, evidence is admissible to explain the ambiguity. Or if the writing does not. purport to contain all the stipulations of the contract, parol evidence is admissible to prove other portions thereof not inconsistent with the writing. Civil Code, §5204; Forsyth Mfg. Co. v. Castlen, 112 Ga. 199 (37 S. E. 485, 81 Am. St. R. 28), and citations. Under the terms of this contract it was no violation of the general rule against contradicting a written contract by parol to show what was the agreement between the parties as to the making of sales between the date of the contract and the date when the inventory was to be taken. Moreover, when the plaintiffs brought this suit, they alleged that there was a parol agreement or permission as to such sales, stated what it was, and averred that the defendant had violated its terms. On the trial, they introduced a letter written by them to the defendant on January 5, 1907, stating what were their contentions, one being that there was an agreement for the defendant to continue sales at retail and carry on business in the usual way, but denying that he had the right to pick over the stock or to sell in job lots. After this, and after the defendant had testified on the subject, during the progress of the trial, the plaintiffs amended their petition by striking that portion of it whiqh alleged a parol license or permission to sell; but did not withdraw the evidence which they had already introduced on the subject, or move to rule out that of the defendant. Unquestionably the defendant had the right to introduce evidence in regard to his contention. Still further, the evidence complained of is only referred to in the most 'general way in the motion for a new trial, and is not set out in the brief of evidence. 3. Error was assigned because the court admitted in evidence the subscription list of the stock of the Farmers’ Mercantile Company, showing fifty-six subscribers thereto, and their names and the amount of their stock. The ground of objection was irrelevancy. Counsel for plaintiffs in error considered this ruling so serious that in his brief he characterized it as “catastrophic.” In the plaintiffs’ petition it was alleged that on December 29 the de [319] fendant associated himself with others in a company, for the purpose of conducting a general retail business, and they were incorporated under the name of the Farmers’ Mercantile Company; that, prior to the incorporation, the defendant was a partner in the company, and subsequently thereto he was elected president and general manager of its business, and was a stockholder therein; that he selected from the stock of goods sold to the plaintiffs the most valuable lines thereof, and removed and stored them in a warehouse and a vacant store; and that, if he had authority to sell prior to January 1, 1907, at wholesale or in job lots, he could not exercise this right by making sales to that company, in which he was interested as stated. It was the evident purpose of the plaintiffs to show that a sale to the company mentioned was not bona fide, and that the defendant acted in bad faith, and in reality sold to himself, at least in part. It was competent for the defendant to rebut this contention by showing that the stock had been subscribed for by fifty-six different people, and that his interest was comparatively small. Interest being asserted as an indication of mala lides and practically dealing with one’s self, it was not irrelevant to show, in rebuttal, the limited extent of such interest. If the evidence was sought to be used for any purpose other than that for which it was admissible, or if it was desired to have its effect limited in the consideration of the jury, the presiding judge should have been requested to make a proper ruling or give proper instructions on that subject. The evidence was not so wholly irrelevant as to make it inadmissible on that ground. Nugent v. Watkins, 129 Ga. 382, 385 (58 S. E. 888). If there was no error in admitting it, and no ruling was invoked as to the limited purpose for which the jury could consider it, its admission will not require'a new trial. If evidence is admissible on behalf of the defendant for any purpose, though its effect on the plaintiffs’ .case may be serious, this will not make its admission erroneous as being irrelevant. 4. There were numerous other assignments of error in regard to the pleadings, the evidence, charges of the court, and refusals to charge. In the light of the pleadings, the evidence and the entire charge, none of these would make a reversal necessary. Judgment affirmed on main' hill of exceptions; cross hill dismissed. All the Justices concur.