McNair v. Manget , 34 Ga. App. 633 ( 1925 )

Bell, J.

(After stating the foregoing facts.) The defendants contend that it was agreed between the parties that the plaintiffs were to be furnished with a mill contract for the cotton before the contract which the plaintiffs relied on should be effective, and that, since this was never furnished, the contract never became operative. There is nothing either in the instrument upon which the plaintiffs predicate the action or in the letter set forth in the defendants’ answer, or in both together, to support such contention; and to establish it, a resort to parol evidence would be necessary. The language of each and both of the instruments clearly implied an obligation by the defendants to purchase, effectual from the delivery of the confirmation and acceptance sued on, and, therefore, oral testimony of a different intention would have varied the terms of the agreement and violated the parol-evidence rule. The defendants did not plead a parol condition with respect to which the writings were silent. Heitmann v. Commercial Bank of Savannah, 6 Ga. App. 584 (65 S. E. 590); Arnold v. Malsby, 120 Ga. 586 (48 S. E. 132); Pryor v. Ludden & Bates Southern Music House, 134 Ga. 288 (67 S. E. 654, 28 L. R. A. (N. S.) 267); Bond v. Perrin, 145 Ga. 200 (88 S. E. 954). The agreement as finally made provided for a “mill contract to be furnished Manget Bros. & Co., Newnan.” Speaking only as to this instrument, there was no ambiguity as to who should furnish the mill contract; for presumably the parties contemplated acts to be done only by themselves, and undoubtedly this provision imposed a duty only upon the defendants. Assuming, however, that the writing declared on by the plaintiffs should be construed in the light of the “confirmation” pleaded by the defendants, it still does not appear that the mill contract was to be furnished by a third person for whose act or omission in regard thereto the defendants should not be responsible. In other words, even if both writings are considered together, it still appears that the defendants were obligated to see that such collateral contract was furnished, although it was actually to be furnished by another. The furnishing of the same might have been a condition to the right of the defendants to hold the plaintiffs bound, unless the plaintiffs saw fit to waive the failure to furnish it (Equitable Mfg. Co. v. Davis, 130 Ga. 67 (2), 60 S. E. 262), but such failure on their part, or on the part of another for whose performance they were responsible, afforded no ground for defeating their liability to the plaintiffs, since the condition was one which the plaintiffs could waive or not, at their election, and since it appears that they elected to waive it. The defendants could not take advantage of their own failure to perform a collateral obligation, and thus relieve themselves of their principal liability under the contract. In this view, it is unnecessary to determine whether, if the “confirmation” pleaded by the defendants had been such as to materially vary or contradict the instrument sued on, it should yet, under legal principles, have been considered in construing the latter instrument. See Civil Code (1910), § 5789; Cable Co. v. McFeeley, 7 Ga. App. 435 (66 S. E. 1103). We have merely assumed that the defendants are right in their contention that the two writings should be considered together, because in doing so we still reach the conclusion that the answer failed to set forth a condition precedent to the completion of the obligation to purchase.

There is no insistence in the brief of counsel for the plaintiffs in error that there was any issue for the jury after the court had stricken paragraph 9 of the answer, and had excluded the evidence tendered in support thereof, but the sole contention made is, that, since the court erred in these rulings, there wás not a legal termination of the case. We are not called upon, therefore, to examine the evidence admitted for the purpose of deciding whether the particular verdict was demanded, the assignments with respect to this question being waived by the absence of any reference thereto in the brief. Being of the opinion that such prior rulings were not erroneous upon any ground urged, and the sole contentions with respect thereto being as indicated above, we affirm the judgment.

Judgment affirmed.

Jenkins, P.J., and Stephens, J., concur.