Mays v. Hankinson & Hagler , 31 Ga. App. 473 ( 1923 )

Jenkins, P. J.

A rent note called for “40,000 lbs. of United States standard lint cotton.” On the trial of a distress warrant to collect an alleged balance due to the landlord, claimed to be owing partly by reason of a very small balance of cotton not delivered, but mainly by reason of the fact that most of the cotton actually delivered was of a grade below the basis of “middling,” and consequently of less value than the cotton 'to which he was entitled, proof was submitted, without objection, in explanation of the term “United States standard lint cotton,” as follows: “There are several grades in United States standard lint cotton. They run from strict good middling down to ordinary. The basis is usually middling; then strict middling, good middling, strict good middling and middling fair; and below middling is strict low middling, low middling, strict good ordinary, and good ordinary.” The plaintiff landlord offered evidence to show a custom among landlords and tenants to pay rent only in “middling” cotton where the rental contract provided for the delivery of a certain quantity of cotton, and the grade was not specified. He offered also to show an alleged “understanding” between this plaintiff and the defendants that “middling” cotton should be delivered under the terms of “ United States standard lint cotton.” This evidence was excluded, and the jury, by direction of the court, found in the plaintiff’s favor for an amount representing the value of the portion of the cotton undelivered, but against his contention that he was entitled to the difference in value between “middling” cotton and the grades below “middling” actually delivered. The plaintiff excepts to the exclusion of the testimony referred to. The contention of the defendant in error is that the only ambiguity in the contract consists in the meaning of the trade term “United States standard lint cotton,” and that the contract was complied with by a delivery of any cotton covered by the “United States standard” system of grading. Held:

1. “Words generally bear their usual and common signification; but technical words, or words of art, or used in a particular trade or business, will be construed, generally, to be used in reference to this peculiar meaning. The local usage or understanding of a word may be proved in order to arrive at the true meaning intended by the parties.” Civil Code (1910), §4268 (2); Daniel v. Maddox-Rucker Banking Co., 124 Ga. 1063 (2) (53 S. E. 573); Louisville &c. R. Co. v. Southern Flour Co., 136 Ga. 538 (2) (71 S. E. 884). The meaning of the term “United States standard lint cotton” was therefore subject to explanation by parol testimony. In this case its meaning was arrived at by undisputed testimony admitted without objection.

2. “Parol evidence is inadmissible to add to, take from, or vary a written contract. All the attendant and surrounding circumstances may be proved, and if there is an ambiguity, latent or patent, it may be explained; so if a part of a contract only is reduced to writing (such as a note given in pursuance of a contract), and it is manifest that the writing was not intended to speak the whole contract, then parol evidence is admissible.” Civil Code (1910), §4268 (1). In this case it appears manifest from the agreement that some particular grade, and not any grade, was in the mind of the contracting parties. Whether the cotton to be delivered measured up in kind to the unexpressed quality in the minds of the contracting parties was to be governed by the “United States standard” system of grading; but the provision which merely fixed the method and standard by which the grade of any quality of cotton could be arrived at did not indicate that the parties contemplated that the delivery of any possible grade would amount to a compliance with the terms of the agreement. Thus, while the contract indicates that some particular grade must have been in the minds of the parties, since a system or method of classification was provided whereby any quality of the commodity tendered could be classified according to an agreed standard, it does not speak the entire agreement, in that it fails to designate which grade the standard system of grading was to be applied to. The contract thus indicating on its face a lack of completeness in this respect, it is competent (where the statute of frauds is not involved) to supply such omission by explaining the consideration, where it can be done without contradicting any of the expressed terms of the agreement. Stewart v. Cook, 118 Ga. 541 (45 S. E. 398).

Decided December 10, 1923.

Distraint; from city court of Richmond county—Judge Black. June 8, 19.23.

William H. Flaming, for plaintiff. Callaway & Howard, for defendants.

3. In the absence of any such parol understanding, a custom of the trade, if of such universal practice as would justify the conclusion that it must by implication have formed a part of the agreement, could be proved in aid of an otherwise incomplete or ambiguous writing. This rule does not authorize proof of a custom where it runs counter to or is inconsistent with an expressed provision of the agreement. Stamey v. Western Union Tel. Co., 92 Ga. 613, 616 (18 S. E. 1008, 44 Am. St. R. 95); Vardeman v. Penn. Mutual Life Ins. Co., 125 Ga. 117 (2), 120 (54 S. E. 66, 5 Ann. Cas. 221); Lowery Lock Co. v. Wright, 154 Ga. 867 (4) (115 S. E. 801). Thus, if the provision, which we have construed as indicating that some particular grade of cotton was' in the minds of the parties, and as merely providing a method or standard by which it could be ascertained with certainty whether or not the commodity as tendered did in fact do so, could be construed as providing that any possible quality according to the “United States standard” system of grading would satisfy the contract, then, under that construction, parol testimony would be inadmissible for the purpose of showing a contrary understanding or custom.

Judgment reversed.

Stephens and Bell, JJ., concur.