Smith v. Georgia Railroad & Banking Co.

Lumpkin, J.

(After stating the foregoing facts.)

1, 3. It is a familiar rule that pleadings are to be construed most strongly against the pleader. In one portion of the petition there is a somewhat vague reference in regard to “when said agent under-' took, as herein set forth, that the said receipt by its terms and the terms of the agreement was not to be delivered without first obtaining the written agreement from said companies, which he undertook to obtain for her, and hence the delivery of same was not proper or efficacious.” But this is not a direct allegation that the relinquishment was not to be delivered except upon a condition. The expression, “when said agent undertook, as herein set forth,” etc., makes this entire statement depend on what had been set forth “herein;” and nowhere in the petition was it alleged distinctly that the delivery of the release, or its taking effect, was made conditional upon the obtaining of the counter-agreement. There is a clear -distinction between giving to a person a paper to be delivered to another upon the fulfilment of some condition, and not otherwise, and the making of a written agreement, with a parol promise to give a counter-agreement changing or modifying its plain terms. In the one case, the theory is that the agreement has never been delivered in the legal sense. In the other it has been consummated, but with a parol agreement for the adding of other terms to the contract. An agreement of the latter character violates the rule 'against changing or supplementing a written agreement, which is complete on its face, by parol evidence. The plaintiff did not allege that the relinquishment was entrusted to, the agent to be delivered only in the event of the making and returning to her of an additional written agreement from the other parties, or that if they declined to make such an agreement the relinquishment was not to be delivered at all, or was to be returned to her. The contract was complete on its face, and was a relinquishment on account of all damages sustained by her. She received a consideration and delivered the paper. She did not allege that she received $1750 upon condition that it should be returned if the other parties did not give her a counter-agreement. Apparently she received that sum of money absolutely, and gave to the agent the contract of release. The money was hers, and the relinquishment was to be “transmitted” to the other parties, and was delivered to their agent. Construing the petition under the rule to which reference has been made above, there was a complete payment and relinquishment, but the agent of the other parties agreed to get them, when he delivered the release to them, to give her another writing, the effect of which would be to practically annul the relinquishment contained in the instrument signed by her. A petition setting forth such facts was demurrable. Moreover, there was no direct statement that the agent was acting for both sides in regard to the delivery of the receipt or release. He approached her as the agent of the adverse parties, for the purpose of making a settlement with her; and while he said he was her “friend,” he was the agent of the other parties, and evidently dealt with her as such. What has been said readily distinguishes this case.from Hansford v. Freeman, 99 Ga. 376 (27 S. E. 706), and Moore v. Farmers’ Mutual Ins. Asso., 107 Ga. 199 (33 S. E. 65), and similar cases.

3, 4. The allegations of the petition are insufficient to show a case of fraud or incapacity to contract, which would authorize the setting aside of the written agreement. It is alleged, that the plaintiff was prostrated by the injury; that it was necessary to administer opiates and anodynes to her to alleviate the pain; that “the effect of all this was to totally unfit her for the transaction of any business;” and that she proposed to delay the settlement, but the agent of the lessees of the defendant urged it. Had the petition stopped with reliance upon a fraudulent taking advantage of her condition, with sufficient allegations of fact as to the fraud or. incapacity to contract, there would have been more merit in the effort to set aside the contract. But, when taken as a whole, it is evident that the real trouble is not on account of incapacity on the part of the plaintiff to contract, but because she contends that the agent of the other parties did not comply with a verbal promise made by him in connection with the contract. So far from showing a mental and physical inability to make a trade, if she could enforce the parol promise alleged to have been made to her by the agent, she would have received $1750 and have given a receipt and relinquishment specifying • that “I hereby acquit, discharge, and release the said Georgia Eailroad and Banking Company, the Louisville and Nashville Eailroad Company, and the Atlantic Coast Line Eailroad Company for all claims for damages of every kind, nature, and character growing out or incident to personal injuries sustained by me,” and yet she would have an- agreement in return which would practically nullify the relinquishment of “all claims for damages,” and malee the payment of $1,750 only for “trivial” damages, leaving her to get as much more as she could if her injuries proved more than trivial or temporary. Such a trade would certainly indicate no mental incapacity.. There is no denial that she knew the contents of the paper signed by her, and understood that on its face it was a complete relinquishment of her claims, or that she was receiving $1,750 when she signed it. According to her petition, the real trouble was that she made a complete written contract, and now claims to supplement it with a parol promise on the part of the agent of the other parties. Taken as a whole, the petition sets out no such case of incapacity to contract or frau'd as would authorize the setting aside of the agreement.

Judgment affirmed.

All the Justices concur, except Holden, J., disqualified.