
    Chelsea McCalla, plaintiff in error, vs. Green B. McCalla, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Written Contract — Latent and Patent Ambiguity — Parol Testimony. — When a suit was pending on a promissory note dated January 1st, 1860, for $240 00, due one day after date, made by C. McCalla, with a memorandum on the back thereof as follows: “The within note to be paid when C. McCalla collects a certain note on Thomas Pledger for $251 00.” And it was in proof, by a wit,ness, who was present *when the note was made, that it, “the note, was given for a note the payee had on Pledger, which C. McCalla was to collect; when collected he was to pay the note sued on. The payee was to pay C. McCalla for his services. The memorandum was made at the same time as the note:
    Held, That these facts were proper to be considered by the jury in determining what the parties meant by the note and memorandum, and that it was error in the Court to charge the jury that they could only consider it as it tended to show fraud or want of consideration.
    2. Same — Same—Intent of Party. — If the facts show that it was the intent of the parties, by this note and memorandum, simply to make C. McCalla an agent to collect the Pledger note, then his liability would depend on whether he did collect it, and if not, whether he failed to use that diligence which it is the duty of a paid agent to use'.
    Contract. Evidence. Promissory notes. Principal and agent. Diligence. Before Judge McCutchen. Whitfield Superior Court. October Term, 1872.
    Green B. McCalla, as administrator upon the estate of Matthew McCalla, deceased, brought complaint against Chelsea McCalla upon two promissory notes, the first of which was dated January 1st, 1860, payable to McCalla one day after the date thereof, and for the sum of-$240 00, with the following indorsement thereon: “The within note to be paid when C. McCalla collects a certain note on Thomas Pledger for $251.” It is unnecessary to set forth the second note, as it was not involved in the decision of the Court.
    The defendant pleaded that he was not indebted to the plaintiff on the note sued on, for it was given to the intestate in lieu of a note upon one Thomas Pledger for $251 70, with the understanding that the payment thereof was to be dependent on the collection of the Pledger note; that never having made a collection on the last mentioned note, no liability has ever attached.
    In the course of the trial, John B. Dunn, a witness for the defendant, testified as follows: “I was present when said note (the one sued on) was executed. It was given for a note Matthew McCalla had on one Thomas Pledger, which the defendant was to collect. When collected, he was to pay the *note sued on. The old man was to pay him for his services; how much I do not now remember. I do not remember who put the indorsement on the back of the note; it was done by the direction of the old man at the time of the execution of the note.”
    In reference to this evidence the Court charged the jury as follows : “The parol testimony admitted can be considered by you
    only as it may tend to show a failure of consideration of the note sued on, or any fraud by Matthew McCalla in procuring the note to be given.”
    The jury returned a verdict for the plaintiff. The defendant moved for a new trial because of error in the aforesaid charge. The motion was overruled, and the defendant excepted.
    D. A. Waeker, for plaintiff in error.
    W. H. Payne; J. E. Shumate, for defendant.
    
      
      Error — Charge to Jury. — Principal case approved in Turner v. Berry, 74 Ga. 486.
    
   McCay, Judge.

We do not think the charge of the Court to the jury on the trial, restricting the view they might take of the parol evidence, was the full measure of the defendant’s rights in this case. This note and the memorandum on the back of it were made at the same time, and coming as they both do from the possession of the plaintiff, they are part of the same written contract. The contract as it stands is dubious as to its real meaning. The note and the memorandum contradict each other in terms as to the time of payment, and the description of the Pledger note is very meagre. Even at common law the facts of a transaction and the surroundings of the parties might be used to explain a written contract which was not clear upon its face. Our Code, section 3748, goes further still, and allows all ambiguities, latent and patent, to be explained by parol; and I have, always thought there was more propriety in explaining by parol patent ambiguities than latent. Patent ambiguities are notice upon their face to all *that the instrument is uncertain, and everybody who deals with the matter has notice; but latent ambiguities lie hidden beneath the surface, and one looking at the paper alone may be misled with the idea that all is clear. At any rate, our Code, as I understand it, breaks up the distinction. We think, therefore, the Court should have allowed the jury to consider this evidence so far as it went to explain what the parties meant by this note and memorandum. The jury, perhaps, would have concluded that, considering all the facts, the intent was simply to make C. McCalla an agent to collect the money on the Pledger note, and that this paper as it stands was the mode they took to secure to Matthew McCalla the faithful performance of his undertaking by Chelsea.

If this were the truth, then his liability would be complete when he got the money. If he failed to get it, then, as he was a paid agent, his liability would depend upon his diligence. We intend, however, to express no opinion on the effect of this evidence — that is for the jury, under a proper charge of the Court.

Judgment reversed.  