Opinion
33127.
DECIDED NOVEMBER 30, 1950.
Damages; from Chatham Superior Court — Judge Atkinson. April 6, 1950.
Brannen, Clark Hester, for plaintiff in error.
Kennedy Sognier, John G. Kennedy Jr., contra.
1. Construing the various house rules of the written contract in relation to each other and the house-rules covenant as a whole in its relation to the entire contract, the alleged oral agreement of the defendant, to store the plaintiff's property on the premises in a place other than in the particular apartment leased by the written contract, cannot be said to constitute an amendment to the house-rules covenant under a subsection of that covenant providing for amendments from time to time to the house rules.
2. That provision of the written lease contract prohibiting employees' receiving goods, merchandise, or property, of any kind, for and in behalf of tenants, properly construed, is no prohibition against the employees' receiving goods or property from the tenant for storage.
3. A distinct collateral oral agreement, not inconsistent with a subsequent written one between the same parties, is not merged in the writing.
4. The defendant's special demurrer to paragraph 3 of count 1 of the petition is without merit.
5. Where a plaintiff in an action against a defendant corporation alleges dealings between him and the agents of the corporation but fails to name or describe the agents referred, it is the right of the defendant corporation by appropriate special demurrer to call on the plaintiff to do so if there appears in the petition no reason why the plaintiff, who dealt with such agents, can not furnish this information.
6. Special demurrers 2, 3, and 4 to count 2 of the petition are without merit.
7. Under the allegations of count 2 of the petition it was unnecessary that the claim-stub be attached to the petition.
8. Count 2 of the petition set forth a cause of action for breach of an implied contract of bailment, and was not subject to general demurrer.
DECIDED NOVEMBER 30, 1950.
Charles E. Steward brought an action for damages in two counts against the Chelsea Corporation. The material allegations of count 1 are substantially as follows: The defendant owns and operates the apartments known as Chelsea Apartments; the plaintiff rents an apartment from the defendant known as Apartment 5B, Chelsea Apartments; as an inducement and in consideration of the renting of the apartment to the plaintiff, the defendant, through its agents, acting for and in its behalf, told the plaintiff that although the storage space in the apartment was possible too small to store his various and sundry articles, they would take care of the storage of any articles which the plaintiff needed stored outside the apartment so that there would be sufficient room in the apartment and the closets therein for his use; on or about May 15, 1949, shortly after moving into the apartment, the plaintiff contacted Mr. Spivey, an agent of the defendant on the premises, and asked him about storage; Mr. Spivey informed the plaintiff that he would be glad to store the plaintiff's belongings and the plaintiff turned over to Mr. Spivey, the defendant's agent, for storage one foot locker and one wooden box with the lid securely fastened; Mr. Spivey then removed these articles for storage; these articles were in the sole custody of the defendant, through its agent Mr. Spivey, for the period from about May 15, 1949, until about September 26, 1949; on or about September 26, 1949, the plaintiff requested that Mr. Spivey deliver to him the box and foot locker so that the winter clothes might be prepared for use; the articles of clothing stored in the box and foot locker were, when delivered to the agent of the defendant, all in excellent condition; when Mr. Spivey, the agent of the defendant, delivered the box and foot locker back to the plaintiff, the lid of the box had been broken open and the articles of clothing stored therein were in such a deplorable condition that the cloth of which the articles were made fell apart; the contents of the foot locker were similarly damaged; as a result of the abnormal deterioration of the contents of the foot locker and the wooden box while they were in the care and custody of the defendant, the plaintiff has been damaged in the amount of $927.50 as shown by an itemized list of the articles damaged attached to the petition.
The allegations of count 2 were essentially the same as those of count 1 with the addition of the allegation that a check or claim stub was given to the plaintiff as a receipt for the delivery of his foot locker and wooden box by the agent of the defendant.
The defendant corporation filed the following demurrers: "1 . . . to Paragraph . . 3, count 1, and to count 1 of the petition upon the grounds that it is not set out in said paragraph or count how or in what manner the plaintiff rented the apartment from the defendant; the term of the rental, the amount of the rental and the terms of the rental contract and whether said tenancy was a tenancy at will or how and in what manner or under what contract plaintiff rented said apartment as alleged. 2. To paragraph 4, count 1, in that it is not alleged in said paragraph of petition what agent or agents of the defendant acted for or in its behalf as alleged or when the plaintiff was told about the storage space as alleged in said paragraph, nor is it alleged in said paragraph how or in what manner storage of articles would be made for and in behalf of the plaintiff. Count 2. 1. That count 2 fails to allege the cause of action against this defendant under the laws of Georgia. Subject to the foregoing general demurrers to count 2, defendant demurs specially to: 1. Count 2, paragraph 2, and says that said paragraph is insufficient in that the check or claim-stub allegedly given is not attached, nor are the terms or conditions of said check or claim-stub set out in said paragraph of petition. 2. Count 2, paragraph 3, upon the grounds that it is not alleged in said paragraph who the agent of Chelsea Corporation was by name or by reference so as to put this defendant upon notice of its alleged agent. 3. Count 2, paragraph 4, upon the grounds that it is not alleged in said paragraph who the agent of the Chelsea Corporation was by name or reference so as to put this defendant upon notice of its alleged agent. 4. Count 2, paragraph 5, upon the grounds that said paragraph is insufficient in that it is not alleged in said paragraph who delivered the foot locker therein referred to." These demurrers were filed on December 21, 1949.
On the same day, the defendant filed the following plea in bar: "1 . . . the plaintiff in said case . . entered into a written contract on May 1, 1949, with this defendant, leasing from this defendant Apartment 5-B, Chelsea Drive, which is owned by this defendant. 2 . . . on said date the plaintiff executed and delivered to this defendant the original of his lease contract with this defendant which contract fully and completely contains all terms and conditions existing with reference to the rental of said apartment. 3. That said contract, a copy of which is hereto attached and marked Exhibit `A', contains the following written covenants: "Employees Prohibited From Receiving Goods: Tenant understands that employees of landlord are expressly prohibited from receiving any goods, merchandise or property of any kind for and in behalf of tenants, or persons residing with tenant and Tenant agrees that if any goods, merchandise or property, of any kind shall be given, intrusted, or placed in the hands of, or custody of, any employee of Landlord then such employee shall be deemed the agent of Tenant and Landlord is hereby expressly released from any and all claims for loss, damage, or expense, in connection therewith. 4 . . . This defendant says that by virtue of and according to the terms of said written contract, the plaintiff expressly released this defendant from all claims for loss, damage or expense in connection with the claim of the plaintiff as is set out in counts 1 and 2 of the original petition."
To the plea in bar the plaintiff filed his answer in which he admitted the execution of the contract, but denied that it contained all the terms and conditions existing with reference to the rental of the apartment or that the plaintiff had released the defendant from all claims for loss or damage in connection with his claim. Answering further, the plaintiff alleged: "1. That upon entering into the . . written contract with Chelsea Corporation, plaintiff was assured that sufficient storage room would be furnished him to store various and sundry articles on the premises owned by Chelsea Corporation, in a place other than the particular apartment rented to plaintiff under the terms of the rent contract. The plaintiff considered this an amendment to the contract, was authorized to consider this an amendment by virtue of the following paragraph in the written contract: `Amendments: (1) Further, any amendments or modifications of the above House Rules or any additional House Rules which may be promulgated from time to time by landlord in connection with the management of the building, its hall, stairways, porches, drive, parking area, grounds, walks, and other appurtenances, and for the delivery of merchandise and other things by tradespeople and other persons, are hereby made a part of this agreement, with the same effect as though written herein, and shall be conformed with by Tenant.' 2. That he was allowed by an agent of the corporation to present articles to the corporation for storage in the basement of the Chelsea Apartments. These articles were received by the agent, receipts were given to plaintiff by the agent of the Chelsea Apartments for the articles stored, and that numerous other tenants were also allowed to store articles in the basement in the same manner, and that this constituted a mutual deviation from the provision quoted . . in the defendant's plea in bar. 3. That the paragraph of the rent contract quoted in defendant's plea in bar . . does not apply to storage of plaintiff's articles in the basement of Chelsea Apartments, but is intended to apply only to the delivery of goods, wares, and merchandise delivered by third parties to plaintiff's residence in the Chelsea Apartments."
The defendant demurred to the plaintiff's answer to its plea in bar on the ground that it set forth no legal defense; and demurred specially to paragraph 1 upon the ground that prior and contemporaneous statements merged in the contract and that the plaintiff cannot add to, vary or contradict the terms of the written contract; it also demurred specially to paragraph 2 upon the ground that no consideration is shown for the novation pleaded; and to paragraph 3 upon the ground that the allegations are conclusions of the pleader and contrary to the express terms of the written contract between the parties.
The court thereupon entered the following judgment: "The court is of the opinion that under the facts alleged, Mr. Spivey being agent in charge of the operations of Chelsea Apartments and in the course of the business of defendant corporation, having accepted the articles for storage and issued receipts therefor, he was the alter ego of defendant corporation to that extent and defendant corporation is liable as a bailee under both counts of the petition and under the facts as admitted in the `plea in bar' and the answer thereto. Thereupon, the court overrules all the grounds of the demurrer filed December 21, 1949 [demurrer to petition], and of the demurrer filed January 20, 1950 [demurrer to plaintiff's answer to the plea in bar] and denies defendant's `plea in bar,' but leaves the pleadings as a part of the record in the case, for such relevancy as they may have in the trial of the main case." The defendant excepted to this judgment.
Error is assigned upon the trial court's overruling the defendant's demurrers to the plaintiff's answer to the defendant's plea in bar; upon the court's denying the defendant's plea in bar; and upon the court's overruling the defendant's demurrers to the plaintiff's petition.
1. The defendant corporation contends in its plea in bar that the plaintiff and the corporation entered into a written contract by the terms of which the defendant leased the apartment in question to the plaintiff; and that by the terms of the contract, and, particularly, in view of the following covenant, the plaintiff expressly released the defendant from all claims set out by the plaintiff in courts 1 and 2 of his petition: "Employees Prohibited From Receiving Goods: Tenant understands that employees of Landlord are expressly prohibited from receiving any goods, merchandise, or property, of any kind, for and in behalf of Tenant, or persons residing with Tenant and Tenant agrees that if any goods, merchandise, or property, of any kind, shall be given, intrusted, or placed in the hands of, or custody of, any employee of Landlord then such employee shall be deemed the agent of Tenant and Landlord is hereby expressly released from any and all claims for loss, damage, or expense, in connection therewith."
By his answer to the plea in bar the plaintiff admitted the existence of the written contract between him and the defendant corporation and admitted that it contained the foregoing covenant, but he contends that the same contract contained the following covenant: "(L) Amendments: (1) Further, any amendments or modifications of the above House Rules or any additional House Rules which may be promulgated from time to time by Landlord in connection with the management of the building, its halls, stairways, porches, drive, parking area, grounds, walks, and other appurtenances, and for the delivery of merchandise and other things by tradespeople and other persons, are made a part of this agreement, with the same effect as though written herein, and shall be conformed with by Tenant." And the plaintiff contends that by virtue of this provision of the written contract, the corporation's agreement at the time of entering into the written contract, to furnish to the plaintiff sufficient storage space to store his various and sundry articles in a place other than in the particular apartment leased to him, the plaintiff was authorized to consider this an amendment to the written contract.
Answering these contentions in inverse order, we are constrained to say that, construing the various House Rules in relation to each other and the House-Rules covenant in its relation to the contract as a whole, the plaintiff's contention that the corporation's agreement, to furnish special storage space to him, is an amendment to the contract, is not tenable. The provision for amendments is a subsection of the House-Rules covenant and merely provides for amendments or modifications of the House Rules, not for amendments to the contract as a whole. The House Rules provided for in the contract were made and included in the written contract "in the interest of promoting and maintaining an environment conducive to the safety, welfare and happiness of the greatest number of residents" in the defendant's apartment building. The alleged agreement by the corporate defendant to store the plaintiff's property is not of a species to be grouped or mated with the House Rules. One specifies an obligation of the landlord; the others specify the obligations of the tenants. The lion does not mate with the lamb; the lily may not be engrafted upon the rose; they are not ejusdem generis. It follows that the court erred in overruling the defendant's demurrer to so much of the plaintiff's answer to the defendant's plea in bar as seeks to plead that the special agreement to store the property of the plaintiff constituted an amendment to the written contract.
2. By similar processes of reasoning the defendant's contention that the covenant in the written contract prohibits its employees' receiving "any goods, merchandise, or property, of any kind, for and in behalf of tenants"; makes any employee who thus receives goods, merchandise, or property, of any kind, the agent of the tenant; and releases the landlord from "any and all claims for loss, damage, or expense, in connection therewith"; and bars the plaintiff's action in this case, is untenable.
From a perusal of the covenant in question, the question at once arises, did the parties to the contract intend this provision to prohibit the defendant's employees' receiving goods, merchandise, or property, of any kind, from a tenant for storage?
The cardinal rule of interpretation of contracts is to determine the intention of the parties. If that intention is clear and contravenes no rule of law, and sufficient words are used to arrive at the intention, it will be enforced irrespective of all technical or arbitrary rules of construction. Words are interpreted according to their primary acceptance or usual and common signification, unless from the context of the contract and the clear intention of the parties to be collected from it, they appear to be used in a different sense. Bussey v. Hager, 82 Ga. App. 23, 27 ( 60 S.E.2d 532).
Were we to indulge in conjecture, we should say that such a provision included in a contract drawn by a corporate landlord was included for the purpose of relieving the landlord from the rather well-known practice of thoughtless tenants who foist upon the employees of the landlords of large apartment buildings the perhaps easy but responsible task of receiving their numerous parcels from the various delivering services while the tenant is absent; but, laying aside conjecture, when given their usual and customary meanings, the words, "for" and "in behalf of" tenants, do not mean "from" tenants. Though "for" is a word of wide application its meaning is determined noscitur a sociis, from the context in which it is used; and, given its usual and customary signification in the context here, "for" is synonymous with "in behalf of," and if one do an act "in behalf of" another he does it "in the name of another." Childress v. Miller, 4 Ala. 447, 450; State of Georgia v. Brailsford, 2 U.S. 402 (2 Dall. 402, 1 L. ed. 433). It seems obvious to us, therefore, that if an employee of the defendant receive goods or property in the name of another he must receive the property from a third person. One does not need to receive goods in the name of the very person who is delivering the goods. Such a fiction seems to us a folly, and ordinary men do not play at such games. Under this construction of the words "for" and "in behalf of" and the covenant in which they occur, we do not think that an employee of the defendant who receives goods or merchandise from a tenant for storage on the defendant's premises, whether by an express or implied agreement of the defendant to receive and store the goods, is precluded by this provision of the written contract from being the agent of the defendant so as to relieve the defendant from all responsibility for failure to exercise proper care and diligence in protecting and keeping the goods safely. If such had been the intention of the parties, a simple statement to that effect could have been included in the contract, but receiving goods for and in behalf of a tenant is not of the same genus of action as receiving goods from a tenant, and the latter action cannot be said to be included in the former, and we find no other words in the covenant or contract indicating an intention of the parties that employees of the defendant are prohibited from receiving goods from the plaintiff for storage. It follows that the plaintiff is not estopped by this provision of the written contract from pursuing the present action, and the court did not err in denying the defendant's plea in bar, under this contention of the defendant.
3. Count 1 of the petition is based upon allegations that the defendant agreed to store the plaintiff's goods as an inducement to, and in consideration of the plaintiff's renting the apartment in question. As we have already pointed out, this agreement was not in conflict with the written contract by virtue of the covenant prohibiting employees of the defendant from receiving goods for and in behalf of the tenant, but it is also contended by the defendant that this oral agreement to store the goods merged in the written contract. "A prior or contemporaneous parol agreement which contradicts, varies, or otherwise modifies a written agreement between the same parties, and pertaining to the same subject-matter, is merged into the written agreement; and where parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, be conclusively presumed that the writing contains the entire contract. . . However, all prior or contemporaneous parol agreements between the same parties are not necessarily merged into the written contract. A distinct collateral oral agreement, not inconsistent with the written one, is not so merged. . . One contract may be the consideration of another, the inducement to the execution thereof; and where an independent parol agreement has been made as the inducement to the making of a written contract between the same parties, the former may be proved and may be enforceable, though not referred to in the latter." Neuhoff v. Swift Company, 54 Ga. App. 651 (2a, b) ( 188 S.E. 831). It follows that the court did not err in overruling the plea in bar for the reason that the prior agreement was merged in the written agreement. There is no reference in the written contract to storing of goods on the premises that conflicts with or is inconsistent with the alleged oral agreement.
4. From the circumstances of this case and what has been said in the foregoing division of this case, it was unnecessary for the plaintiff to set out the terms of the written contract or to attach the same to his petition. The defendant's special demurrer to paragraph 3 of count 1 of the petition is without merit and the court did not err in overruling it.
5. When a plaintiff alleges dealings between him and a defendant corporation through agents of the corporation, but fails to give the names of the agents referred to, it is the right of the defendant corporation by appropriate special demurrer to call on the plaintiff to do so. Cherokee Mills v. Gate City Cotton Mills, 122 Ga. 268 ( 50 S.E. 82). Since no reason appears why the plaintiff, who dealt with the agent, could not furnish this information, the court erred in overruling the defendant's special demurrer to count 1 of the petition calling for this information. See, in this connection, Steed v. Harris, 52 Ga. App. 581 ( 183 S.E. 847), and cit.
6. Construing count 2 of the petition as a whole, special demurrers 2, 3, and 4 are without merit. Paragraph 1 of this count designates the agent of the corporation to whom he delivered his property as Mr. Spivey and presumptively Spivey is "the agent" who gave the plaintiff the receipt in question, who was requested to deliver the foot locker in question, and who delivered the foot locker in question. The paragraphs demurred to upon the ground that the agent is not named followed the first paragraph wherein Spivey is designated as the agent with whom the plaintiff left his property and in these latter paragraphs the plaintiff refers to "the" agent, obviously referring to the agent first named, not to another agent.
7. Under the allegations of count 2 it was unnecessary to attach the claim-stub. There is no allegation that the contract of bailment, if one existed, was in writing upon the claim-stub. The plaintiff merely alleged the facts under which he allegedly delivered his property to the defendant corporation. These facts may or may not constitute sufficient facts to show a contract of bailment; but, if the claim-stub contained limitations of the bailment, this would be a matter of defense.
8. There was no general demurrer filed against count 1 of the petition and the general demurrer lodged against count 2 is not well taken. Mr. Spivey was alleged to be the agent of the defendant corporation who received the plaintiff's goods and issued the receipt therefor, and the defendant corporation is alleged to have had sole custody of the property during the time it was stored. This was sufficient to render the defendant liable as a bailee. Gilmer v. Allen, 9 Ga. 208; Lewis v. Amorous, 3 Ga. App. 50, 53 ( 59 S.E. 338); Merchants National Bank of Savannah v. Carhart, 95 Ga. 394 ( 22 S.E. 628); DeLoach Mill Manufacturing Co., v. Standard Sawmill Co., 125 Ga. 377 ( 54 S.E. 157). The court did not err in overruling the general demurrer to count 2 of the petition.
Judgment affirmed in part, and reversed in part. Gardner and Townsend, JJ., concur.