It is contended in the motion for rehearing that the court overlooked certain documentary evidence, and certain testimony in connection therewith. The documentary evidence referred to consists of two letters, one dated March 2, 1938, written by the company (accompanying the contract in controversy) to Ellington, appearing in the record as follows: "We enclose herewith your new contract expiring April 1st, 1939, properly filled one *Page 733 by us. When executing this contract, sign it yourself in ink, and obtain the signatures (in ink) of two or more satisfactory sureties. Then sign the locality sheet and fill out and sign the dealer's property statement. The property statement on sureties is to be used as shown on the statement itself. Please also give us the names and addresses of reliable references, on the reference blank enclosed, who are well acquainted with your sureties. As you will note, we have inserted in the contract the amount of your indebtedness to us as of March 2nd, 1938, namely four hundred ninety-three and 15/100 dollars, which amount is also inserted in the statement at the bottom of this sheet. Carefully compare the amount in both places with your books, and if found correct, kindly sign the statement below (in ink) and return this entire sheet with your contract after you have properly executed the same. Please attend to both of these important matters at the earliest possible moment. [Signed:] Very respectfully, The J. R. Watkins Company, H. I. Greene." The other letter, dated May 9, 1938, written by Ellington to the company and accompanying the contract after it had been signed by the defendants, is as follows: "The J. R. Watkins Company, Winona, Minn., U.S.A. Dear Sirs: I have received the contract dated March 2nd, 1938, and have executed it and I am returning it herewith. When received this contract showed, and now shows, the amount of indebtedness due from me to the J. R. Watkins Company as of March 2nd, 1938, for goods and other articles it sold and delivered to me, as vendee, at Winona, Minn., and other regular places of shipment, to be four hundred ninety-three and 15/100 dollars, which I have carefully verified by my books and hereby acknowledge to be correct. Name: C. R. Ellington. Post Office: Douglas, Georgia." It is contended that the letter from Ellington to the company estops Ellington from denying that he owed the company the sum of $493.15, or that this amount was not, at the time, written into the contract. We are cited to the parol testimony of an officer-witness of the company to the effect that the contract accompanied the letter first above mentioned; that the contract had written in it the amount of the pre-existing indebtedness at the time it was mailed to Ellington, on March 2, 1938; and that on May 9, 1938, the company received a letter returning the contract signed by the defendants. Our attention is further called to a portion of the testimony of Ellington regarding his letter of May 9, *Page 734 1938, to the company, written when he returned the contract to the company. The testimony referred to by counsel for the company was as follows: "That letter (indicating) of May 9, 1938, is my handwriting. That is my signature so far as I went. My eyes are bad, and I don't want to say that I signed them or run over one. I don't want to deny anything, understand. I couldn't tell you if that contract was signed and mailed to the company prior to May 9, 1938. That letter contains the truth so far as I know. Of course, it was mailed to me, but as I told you, I didn't remember. I mailed that contract in on May 9. I might have mailed the contract and letter together. I couldn't say. I can't tell by reading that letter. I said, `I have mailed my contract to Winona, to-day.' That letter is absolutely the truth. I suppose I didn't mail it until May 9, by that." The other testimony of Ellington with reference to the letter was as follows: "That is my signature on the bottom of the letter that is marked exhibit 3 [letter of May 9, 1938]. There is something else I want to explain about this. There was no such item filled in then, and you see it is a different colored ink and a different typewriter. It is my signature. I couldn't say whether the statement `which I have carefully verified by my books and hereby acknowledge to be correct' was in there when I signed it or not. I know there wasn't any amounts written in here when I signed it. Colonel, my signature is there, but I don't know how to explain it. It has got different colored ink there, but I wouldn't have signed that with $490 in there. They have so many forms that you can't keep up with all them. My name is different up there (indicating). I couldn't say whether my name and address on that letter and the date of that letter is not the same handwriting that the writing in here, to wit: `493.15;' the same typewriting; same kind of ribbon. It is my signature, but I never say anything like this in the ones I signed. That is my signature. I don't deny that." We have set forth the foregoing, in order that the witness's entire testimony concerning the letter of May 9, 1938, may be considered, rather than a portion of such evidence. Thus it will be seen that while Ellington did not deny his signature, he did deny that the sum of $493.15 was written in the letter at the time he signed it, and indicated that it was a form letter. This testimony of Ellington, together with the positive testimony of the witness Minchew, and with that of Batten, was clearly sufficient, in our *Page 735 opinion, to carry to the jury the issue whether or not the amount was written in the contract before or after it was signed, and the jury resolved the issue against the company. So far as the evidence goes, practically the entire testimony revolved around this issue and the court, in the original opinion, had this view in mind. When we used the statement, "There was no other proof submitted by the company that would demand a finding that Ellington owed the company any amount at the time of the execution of the contract," as set out in paragraph 4 of the motion for rehearing, quoting from division 3 of the original opinion, we had further in mind that the company submitted no further evidence establishing the existence of a pre-existing indebtedness, such as statements for merchandise shipped by the company to the defendant Ellington, and remittances therefor (if any) prior to the execution of the contract.
We have carefully reviewed the original opinion in the light of the motion for rehearing, and are still of the opinion that the court did not err, for any of the reasons urged, in denying the motion for new trial.
Original opinion adhered to. Broyles, C. J., and MacIntyre,J., concur.