This case has been before this court twice heretofore. 119 Ga. 186 (45 S. E. 983); 125 Ga. 699 (54 S. E. 706). The action is founded upon a promissory note dated April 11, 1901, and due on or before January 1, 1902, absolute and unconditional on its face, given by J. G. Dolvin to the American Harrow Company, for $934.18 principal, interest at eight per cent, pe.r annum after maturity, and ten per cent, attorney’s fees, if collected by suit. It contains the recital that “This is given in settlement of old note, No. 3975.” At the time of the execution of this note, one "Webster, an agent of the American Harrow Company, wrote, signed, and delivered to Dolvin, an instrument as follows: “I agree to receipt J. G. Dolvin fox note given me to-day, April 11, 1901, for $934.18, note due January 1st, 1902. American Harrow Co., by F. P. Webster.”
At the same time Dolvin gave to Webster, on a printed form furnished by the latter, the following statement:
“John G. Dolvin.
Debits. Face of note .....................1,513.00
Interest accrued .......................... 21.56
1,534.56
Total debits
1,534.56
■ “ .............................. 13.00
By new note due Jany. 1, 1902 .............. 934.56
“P. O. Siloam, Ga. 4/11, 1901.
“Mess. American Harrow Co., Detroit, Michigan.
“Gentlemen: The above is a correct statement of the full and final statement of my note as- made with your Mr. F. P. Webster to-day. ■' I have received my note, and have no further claims of any kind against you. Tours truly, J. G. Dolvin.”
The plea of mutual mistake, which was held in 125 Ga. 699, at page 706, to be sufficient to withstand the objection, in the nature of a general demurrer, urged against it in its entirety, is there fully set forth (pp. 701, et seq.), and as it is quite lengthy, we will give only the following summary of it here. At the time of the execution of the note sued on and the signing of the other written instrument given on the same occasion (copies of which have just been set out), the defendant contended that his original note given to the plaintiff, and for which the note sued on purports to have been given in settlement, was never intended by the parties thereto to be an obligation on his part to pay the plaintiff an indebtedness, as he never purchased the machines for the purchase-price of which the note appeared to have been given, but had merely received them from the plaintiff to be sold by him on commission as plaintiff’s agent; and that if the original note and contract, by reason of their terms, should be held to indicate a purchase by him of the machines, then he had a complete defense of failure of consideration of the note, as the machines had proved to be entirely unfit for the use for which they were intended. In view of these contentions of the defendant, Webster, plaintiff’s agent, “agreed upon a settlement of the transactions represented by said first note,” and desiring, as in the first transaction when the original note was given, to have defendant execute a note as security for a final accounting by defendant for the machines received by him and the proceeds of the sales of machines made by him, Webster proposed to take the note sued on as representing the value of the machines shipped to defendant, which was the amount of the old note, less the freight charges paid by defendant, and the aggregate amount of collections on sales made
The plaintiff moved “to strike that part of the amended answer which alleges and sets forth that the original contract and note were not what they plainly purported to be, and which attempts to explain or in any way modify said ■ contract and note;” and “to strike, as being irrelevant, that part of the amended answer which refers to any blánk form or forms.” This motion was sustained, and the defendant excepted pendente lite. There was a verdict for the plaintiff “for amount sued upon, without interest or 'attorney’s fees.” The defendant assigns error upon his exceptions pendente lite and upon the judgment of the court overruling his motion for a new trial.
1. there is no merit in the exceptions pendente lite. As was said by Mr. Justice Lumpkin, in delivering the opinion when this case was last before this court (125 Ga. 706), in reference to this
2. The original transaction between Dolvin and the company being a sale by the company to him of the fifty harrows, as clearly shown by his absolute and unconditional note and the express terms of the written contract signed by both parties, the court properly excluded contemporaneous parol evidence to vary or contradict the terms of such writings. And in view of the fact that so much of the plea as sought to allege that the original note and contract were not what they plainly purported to be had been stricken, it was not error to refuse to permit Dolvin to testify: “The notes that were taken by [him] for these harrows were taken on a blank form sent him by the company. They had the amount $45.00 printed in the notes.” Such evidence was plainly irrelevant. For the same reason, if for no other, the court properly refused to permit defendant to introduce “A letter from Mrs. Laura A. Printup to plaintiff, dated Nov. 5, 1900, refusing to pay for a harrow, and concluding with the statement, ‘the harrow has been returned to your agent,’ followed by a memorandum supposed to have been made by the plaintiff, ‘ J. G. Dolvin, our agent, Siloam, Ga.’ ”
3. The court also properly refused to permit Dolvin to testify as to transactions solely between himself and Webster, the deceased agent of the plaintiff corporation. “Where a suit is instituted or defended by a corporation, the opposite party shall not be admitted to testify in his own behalf to transactions or communications solely with a deceased or insane officer or agent of the corporation.” Civil Code, §5269 (3). The fact that such transactions were had in the presence of Dolvin’s wife and brothér-in-law, who were in no way connected with the company, did not make his testimony as to such transactions admissible. American Harrow Co. v. Dolvin, 119 Ga. 186 (45 S. E. 983); Merchants Bank v. Demere, 92 Ga. 735 (19 S. E. 38).
5. A ground of the motion for a new trial was: “The court ■erred in admitting in evidence the letters passing between the plaintiff and defendant prior to the execution of the note sued on, the same having no reference to the transaction, and being in substance orders from 'Dolvin for various parts of machines, and requests for prompt shipment, and excuses for delay from the plaintiff, and in the fall advice about collecting the notes taken, said '.letters being about 22 in number and dated between Sept., 1899, and Dec., 1900, fully set put in the brief of evidence. The objection made at the .time was that they were irrelevant, and tended to confuse and becloud the ease. . . Copies of said letters are attached marked exhibit A.” We find that all the letters are dated in 1900 and all of them, with the exception of one, bear date after the date of the original note executed by defendant. Some of them are not open to the objection of irrelevancy; and as the objection was to them as a whole, some being relevant, the objection was not well taken. It appears from letters written by defendant to plaintiff, on November 14 and 26, 1900, that he acknowledged owing the amount of his original note and requested the privilege of paying half of it at maturity, which was January 1, 1901, and the balance-a year afterwards. We think this evidence was relevant, -not on the point as to whether defendant was indebted to plaintiff on the original note, for that was not in issue on the trial, but as a circumstance, for the consideration of the jury, on the question as to whether defendant was really making, at the time the note sued on was given, the contentions set up in his plea, and which he alleged induced plaintiff’s agent to enter into the settlement as defendant claimed it was made.
6. Another ground of the motion for a new trial was, “The court erred in charging as follows: £If there was an honest mis
We are unable to perceive any merit in the second assignment of error upon the portion of the charge now under consideration. Counsel for plaintiff in error contend that, “under the facts of this case in any view, if this whole contract was the outcome of mistake on Dolvin’s part only, he should have relief, and a charge to the contrary was error;” and the Civil Code, §3982, is cited to support such contention. In that section it is said that equity may rescind or cancel a written contract “upon the ground of mistake of fact material to the contract of one party only.” The question of mistake of fact was not involved in this case, and the charge under consideration expressly had reference alone to mutual mistake of law.
7. The following charge was also excepted to: “The evidence to set up and enforce an oral agreement at variance with this note must be clear, plain, and unequivocal.” The exception was that it was not adjusted to the case, because it omitted reference to the “receipt,” and treated defendant’s case as involving only an oral agreement to contradict the note. It was .further alleged that
8. Another instruction to the jury complained of was: “In order for the act of Webster to be binding on the American Harrow Company as their agent, the act must have been by authority of the American Harrow Company, or must have afterwards been ratified by the company with a full knowledge of all the facts. A suit instituted and continued after a full knowledge of the facts would amount to a ratification — with a full knowledge of the acts of the agent, in the transaction, the mutual mistake on the part of both parties, or frauds on the part of Webster, inducing an honest mistake on the part of Dolvin, such a mistake or fraud as under the law would authorize the enforcement of the agreement which resulted in the execution of the note.” The excep
9. Complaint was also made that “The court erred in his charge, after stating what must appear as to the existence of mistake and fraud, in adding as a thing that must appear, ‘and that the plaintiffs have by some act ratified the agreement.’ ” The vice
10. Exception was also taken to the following charge: “In making a contract the parties are bound to exercise ordinary care and diligence to inform themselves as to any facts relating to the subject-matter of the contract, and equity will not relieve for any mistake that was solely the result of a want of such care and diligence.” The exception was, that this charge “was not applicable to this case, and not adjusted thereto, because only a mistake of law was involved, and of the effect of an instrument.” While this charge may not have been applicable in this case, yet it was a correct statement of a general principle of law; and as it applied alike to both parties, and it not appearing that it was probably harmful to the defendant, it was not cause for a new trial.
11. The last ground of the motion was: “The verdict is evidently not the.result of an agreement by the jurors on the truth of the case, but a compromise of divergent views, in that it expressly finds against interest and attorney’s fees, in the face of the charge of the court, which directed them that if they found for the plaintiff at all they would find the full amount sued for, including interest and attorney’s -fees.” As was held in Pullman Company v. Schaffner, 126 Ga. 609 (4), (55 S. E. 933, 9 L. R. A., (N. S.) 407), “A defendant against whom a verdict has been returned can not complain that the verdict is for a less amount than that demanded by the evidence.”
Judgment affirmed.