Williams v. Waters , 36 Ga. 454 ( 1867 )

Walker, J.

1. The Court did right to grant a new trial in this case. The Couuty-Court erred in refusing to allow evidence to show that plaintiff had not complied with his contract. Defendant has the right to reduce the amount of plaintiff’s claim, if he can show that by a failure of the plaintiff to comply with his part of the contract, the defendant suffered loss. If plaintiff failed to work as he contracted to do, he is not entitled, in good conscience, to as much as he would be if he had performed his obligations. Code, sec. 2850 and 2853.

2. There are degrees in secondary evidence, and the best should always be produced. Code, sec. 3691. A sworn copy should be received in preference to verbal testimony, to prove the contents of a written contract. The copy certified by the agent of the “ Bureau,” in the absence of the original, is the best secondary evidence, and should exclude oral testimony of what the contract was; unless the written contract can be impeached by some of the modes known to the lav/, such as fraud, duress, etc.

3. The well established rule of law is, that parol evidence is inadmissible to add to, take from or vary a written contract. Code, sec. 2721. Therefore a contract reduced to writing, and understood by the parties, should be enforced according to its terms, unless there is an ambiguity in it. If there be an ambiguity in the written contract, it may be explained ; Code, sec. 2729.

4. The construction of a written contract is a question for the Court; Code, sec. 2718; whose duty it is to ascertain the intention of the parties, and enforce the contract irrespective of technical rules. If, as it would seem from the evidence, the contract, (a copy of which was before the Court,) was made by the parties, the duty of the Court is to construe it, and mete out to all the parties their rights respectively. The writing speaks the language of the contract, and the Court should carry out its stipulations. We deem it not improper to say, that the rights of the parties, as the facts now appear are to be determined by the writing, the certified and sworn copy of which was before the Court; and the original was read and explained to the parties, both by Judge Yason and the agent of the “ Freedmen’s Bureau.” This is much better evidence of what the contract whs, than the interested statement of the parties, made after they had become involved in a lawsuit.

Judgment affirmed.