Swanson v. Hodges

Felton, C. J.,

concurring specially. I wish to state separately my views on special ground 2 of the amended motion for new trial considered in division 2 of the opinion.

I recognize that statements of facts or admissions made in an offer to settle are admissible in evidence, and that admissions or statements made in the spirit of compromise in an offer of compromise are not admissible, and I further recognize that an independent statement of fact made in an offer to compromise made solely as an independent' statement of fact is admissible to show an admission of such independent statement only (the jury’s consideration of which must be restricted to the independent statement of fact and not the elements of compromise by proper instructions by the court) (Mayor &c. of Columbus v. Howard, 6 Ga. 213, 217 (2); Blakely Hardwood Lumber Co. v. Reynolds Bros. Lumber Co., 173 Ga. 602, 606, 607 (160 S. E. 775); however, I do not feel that the above principles of law are applicable in the present ease because plaintiff’s Exhibit No. 9 was neither an offer to settle nor an offer to compromise. An “offer to settle” is an offer to settle upon certain terms a claim that is unquestioned, while an “offer to compromise” is an offer or proposition to compromise a doubtful or disputed claim. Teasley v. Bradley, 110 Ga. 497, 507 (35 S. E. 782, 78 Am. St. R. 113). The document under consideration and the evidence concerning such document and the circumstances surrounding its execution show that it was merely a statement of the defendant’s contentions as to the status of their mutual accounts, and nowhere was there an admission on the part of the defendant that there existed an undisputed claim, or an admission by the defendant that she owed the plaintiff any money under any *544claim or an offer to settle such claim on any certain terms. Nor was there any evidence that such document was offered in a spirit of compromise as to a doubtful or disputed claim. The defendant testified that, at the time the document was drawn up and. submitted to the plaintiff, she had actually overpaid the plaintiff and the plaintiff owed her the sum of such overpayment. The document was introduced for the sole purpose of showing that the defendant’s agent had made a statement in the document which was contrary to statements made by the defendant on the stand. This whole controversy arose out of a dispute as to the terms of a building contract entered into by the plaintiff and the defendant through the defendant’s authorized agent. The plaintiff contended that the contract was that he was to do certain enumerated work on the house for a stated sum of $29,500 and that the parties agreed that in building the house the plaintiff would include certain “extras” which the defendant agreed to pay the plaintiff on a “cost-plus ten per cent basis.” The defendant contends that the basic price for the construction of the house was $29,750 which included all the work called for in the plans and specifications of the house and that the defendant would pay the plaintiff for certain “extras” which were not contained in the plans and specifications. The immediate dispute between the parties was whether certain items of extras were extras which the plaintiff contends came within the cost-plus ten per cent agreement as contended by the plaintiff or whether those same extras were not the true extras which the defendant agreed to pay but were actually contained in the plans and specifications which were covered by the basic price of $29,750 as contended by the defendant. The defendant testified throughout the trial that the basic contract price between the parties was $29,750 and denied that that basic price was $29,500. The plaintiff testified throughout the trial that the basic price was $29,500. In the document labeled plaintiff’s Exhibit No. 9, which we think was a mere statement of the status of the mutual accounts between the parties as contended by the defendant, the defendant’s agent made the statement that the basic price in the building contract was $29,500, which statement was in conflict with the defendant’s testimony. As stated above, the sole purpose for introducing *545this document by the plaintiff was to show that contradiction for impeachment purposes, and for the reasons stated above the document was clearly admissible for this purpose.