1. In the absence of fraud, accident, or mistake, parol evidence is inadmissible to vary, alter, or contradict the terms of a complete and unambiguous written contract, but is admissible to explain all ambiguities.
2. Whether the plaintiff is entitled to recover expenses of litigation is a matter solely for the jury, and, hence, where the plaintiff included in her petition a prayer for $100 attorney's fees, it was error for the court to charge that, if the jury found for the plaintiff, the verdict should be for the amount sued for in the petition.
3. The evidence authorized the verdict with the exception of the $100 attorney's fees.
Mrs. Nancy T. Estes filed suit against J. S. Taylor, in the Superior Court of Tift County, and alleged substantially as follows: The plaintiff paid the defendant $250, for which she has received no consideration and she is entitled to the return thereof with interest thereon at 7% from date. The payment was made on a contract of sale, as follows: "Tifton, Ga., July 6, 1946. Consideration of city property sold to Nancy T. Estes, namely, the little cottage on the east side of Lankford Manor in the same block, which is number one, and borders the alley on the east, private alley on the north, Lankford Manor on the west. Measurement recorded in Clerk's Record of Superior Court of Tift County, measuring approximately 60 on Fourth St., and about 80 on the alley used by the Lankford Manor, on her rear. Said cottage is now occupied by Mr. Henderson and his family, and is street numbered 205 E. Fourth Street. Also a certain vacant lot on Tift Avenue about 100 200, described as lot 8 in block 199, is $10,000 and all papers to be made the first day of January, 1947, present occupancy has been notified to vacate for repairs and until said Mrs. Estes completes the sales negotiations. Sign this 6th day of July, 1946. Signed, J. S. Taylor. by 'Mrs. Nancy T. Estes accepted and approved'." At the time of the negotiations of the contract, the plaintiff informed the defendant that she would not pay any money or enter into any contract of purchase, unless she could obtain possession of the house for her occupancy within a few weeks and without legal obstruction or delay. The defendant informed the plaintiff that he would have the tenant removed, so repairs could be made, that he had already given the tenant notice to vacate for such purpose, and would pursue this notice by legal action of eviction if necessary in order to deliver immediate possession to the plaintiff for her occupancy, and that he would have the tenant removed during the then summer. The plaintiff believed this, paid the $250, and entered into the contract. Within two weeks after the payment, the defendant said that he was unable to have the tenant removed and therefore unable to deliver possession, and that he would not further attempt to have the tenant vacate the premises. Possession has never been given or tendered to the plaintiff, nor has she been able to obtain possession of the property. The plaintiff has been damaged $100 by reason of the breach of contract, in addition to the amount paid. She prayed for judgment against the defendant in the amount of $350 with interest on the $250 at 7% from the date paid. The defendant filed an answer, which denied liability, and contended that he sold the plaintiff an option to purchase the realty, which bound the defendant to deliver the property on January 1, 1947, upon the additional payment of $250, and the remaining purchase price of $10,000 in notes, but the plaintiff failed to avail herself of the option and forfeited the same; and that since the option was forfeited the defendant has offered to carry out the terms of the agreement and he now offered to comply with it. The case proceeded to trial and the jury returned a verdict for the plaintiff. The defendant excepted to the denial of his motion for new trial as amended.
(After stating the foregoing facts.) 1. Special grounds 1 and 2 of the motion for a new trial assign error on the admission of certain testimony, on the ground that it sought by parol evidence to change the tends of a written contract. Special ground 3 objects to the following charge: "As a general rule of law, parol testimony can not vary or alter the terms of a written contract. However, if there is any ambiguity or uncertainty in a written contract, it is for the jury to determine, from a consideration of all of the evidence, just what the purpose, intention and design of the parties were"--on the ground that it was the duty of the court to construe the contract and exclude all parol testimony given for the purpose of altering a contract in writing. It is true that, in the absence of fraud, accident, or mistake, parol evidence is inadmissible to vary, alter, or contradict the terms of a complete and unambiguous written contract. (Code, 20-704 (1), 38-501; American Sumatra Tobacco Corp. v. Willis, 170 Fed. 2d, 215, 217. However, parol evidence is admissible to explain all ambiguities, (Code, 20-704 (1), 38-502), the question as to what was intended being an issue of fact for the jury. Tarbutton v. Duggan, 45 Ga. App. 31 (7) (163 S. E. 298). "Ambiguity in a contract may be defined 'as duplicity, indistinctness, an uncertainty of meaning or expression.' See Novelty Hat Mfg. Co. v. Wiseberg, 126 Ga. 800 (55 S. E. 923)." Tarbutton v. Duggan, supra. The uncertainty of meaning in the contract here brings it within the definition of an ambiguous one, and, hence, it was proper for the court to admit evidence to clarify the meaning of the ambiguous document and to charge that it was for the jury to determine from all of the evidence the purpose, intention, and design of the parties.
2. Special ground 4 assigns error on the following charge: "If you should find in favor of the plaintiff, Mrs. Nancy T. Estes, the form of your verdict would be: 'We the jury find in favor of the plaintiff, Mrs. Nancy T. Estes.' In which event, she would recover the amount sued for in the petition." It is contended that the charge "is unsound as an abstract proposition of law, in that the petitioner sued for, and was awarded by the verdict of the jury, $100 as attorney's fees; whereas, there is no provision for the same by law." "The expenses of litigation are not generally allowed as a part of the damages; but if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them." Code, 20-1404. The intent of the law, as shown by the words, "the jury may allow them," is to leave the matter of expenses of litigation to the jury trying the case. Patterson & Co. v. Peterson, 15 Ga. App. 680 (84 S. E. 163). Consequently, the court erred in directing the jury to find any sum for attorney's fees. "The plaintiff, by merely paying a given amount to his attorney, could not bind the defendants for this amount unless there were some evidence that the amount so paid was reasonable, and unless it was found so to be by the jury trying the case." Patterson & Co. v. Peterson, supra.
3. The verdict for $250 plus 7% interest is supported by the evidence, and other than the court's instruction that, if the jury found for the plaintiff, it should be for the amount in the petition, which amount included attorney's fees, there is no error of law.
FELTON, J. concurring specially. I concur in the judgment for the reason that in my opinion there was no definite and binding agreement for the sale of the property nor a definite and binding option contract, and the plaintiff was entitled to a return of her deposit. I do not think that any of the written agreements, the purported contract, or checks were ambiguous as to any subject covered by them, and the evidence involved in the ruling added to and varied the written instruments.