Roberts v. Investors Savings Co. , 154 Ga. 45 ( 1922 )

Hines, J.

(After stating the foregoing facts.) »

The defendant, Leila Eoberts, in her answer alleged that prior to the execution of the notes sued on in this case, and to the execution of the bond for title from Lula M. Nicholes to her, the latter agreed to make certain repairs upon the dwelling-house on the property, for the purchase-money of which in part said notes were given. She further alleged that the making of such repairs and improvements constituted a part of the consideration of said notes, that her vendor failed to make the same, and that the consideration of said notes had failed to the extent of the value of such improvements.

The notes sued on recited that they were given as parts of the purchase-money of No. 534 Ponce de Leon Avenue, Atlanta, Ga. The vendor executed to the vendee a bond for title, which recited that the vendor had agreed to sell to the vendee a tract of land, fully described therein, and known as “No. 534 Ponce de 'Leon Avenue/5 in the City of Atlanta, for the sum of $12,365.50, to be paid as follows: $3150 by the transfer by the vendee of her equity in the lot on the south side of Ponce de Leon Avenue, $4750 by the assumption of a loan of that amount on said, property, and the balance of $4465.50 by three notes, for the sum of $1488.50 each, due on or before December 23, 1915, 1916, and 1917, respectively, with interest from date at the rate of seven per cent, per annum; and in which the obligor agreed, if the vendee should well and truly pay said sums of money at the time or times therein specified, “then the vendor was bound to execute to the vendee, her heirs and assigns, a good and sufficient title with full covenants of warranty to the aforesaid described property.55 The plaintiff demurred to this answer of the defendant, setting out-the above facts and pleading failure of the consideration of the notes sued on, on the ground that it was an attempt to add to, vary, and contradict the written contract of sale between the vendor and vendee, evidenced by said notes and said bond for' title. The court sustained said demurrer, and struck the answer of the defendant, on the ground that it was an attempt by parol to add to the written contract of purchase between the vendor and vendee.

Did the court commit error in striking the amendment offered by the defendant to her answer, on the ground that it undertook to set up by parol a collateral agreement entered into between the vendor and the vendee prior to, or at the time of, the execution of the contract of sale ? The notes and the bond for title constitute a complete contract. Armistead v. Weaver, 140 Ga. 740 (79 S. E. 783); Holt v. Clary, 146 Ga. 46 (90 S. E. 381). These instruments describe the land to be sold, the terms of the sale, the giving of the notes sued on in payment in part of the purchase-money, and the obligation of the vendor to convey when the purchase-money is paid. The notes recite that they are given in part for the purchase-money of the premises sold, and the bond for title obligates the vendor to make to the vendee, when the latter pays these notes, title with full warranty to the premises therein described. Under these circumstances, can the vendee set up a parol collateral agreement by which the vendor was to make various and valuable improvements upon the land, that the making of these'improvements constituted a part of the consideration of the notes, thus contradicting the recitals, both in the notes and in the bond for title, that the notes were given in part payment of the purchase-price of this property; and thus set up and prove such prior or contemporaneous collateral agreement to show the failure in part or in whole of the consideration of said notes? We repeat, these instruments constitute a complete contract of sale.

The general rule is that parol evidence is not admissible to add to, take from, or vary a written contract. Civil Code, §§ 5788,, 4268; Rogers v. Atkinson, 1 Ga. 12; Bank of St. Marys v. Mumford, 6 Ga. 44, 78; Bostwick v. Duncan, 60 Ga. 383; Heard v. Tappan, 116 Ga. 930 (3), 934 (43 S. E. 375); O’Neal v. Ward, 148 Ga. 62 (3), 64 (95 S. E. 709). Parol contemporaneous evidence is inadmissible generally to contradict or vary the terms of a valid written instrument. Civil Code, § 5789. If a part only of a contract is reduced to writing, such as a note given in pursuance of a contract, and it is manifest that the writing was not intended to speak the whole contract, then parol evidence is admissible. Civil Code, § 4268. Where the writing does not purport to contain all the stipulations of the contract; parol evidence is admissible to prove portions thereof not inconsistent with the writing. Civil Code, § 5791. In the case at bar it is not manifest that the writings between the vendor and the vendee were not intended to speak the whole contract. These writings on their face purport to contain all the stipulations of the contract of sale. Before parol evidence can be received to show a collateral agreement, it must appear, either from the contract itself or from the attendant circumstances, that the contract is incomplete, and that what is sought to be shown as a collateral agreement does not in any way conflict with or contradict what is contained in the writing. The rule, which permits parol proof in case of apparent incompleteness in written statements of the obligations of the parties, denies parol proof, variant from the written terms, which imposes additional and other terms dependent upon a prior or contemporaneous parol agreement. Forsyth Mfg. Co. v. Castlen, 112 Ga. 199 (37 S. E. 485, 81 Am. St. R. 28); Brosseau v. Jacobs’ Pharmacy Co., 147 Ga. 185, 190 (93 S. E. 293); Young v. Young, 150 Ga. 515 (104 S. E. 149). Here the effort is to impose additional and other terms to those expressed in these writings, and which depend upon a prior or contemporaneous parol agreement. All previous negotiations are merged in the subsequent written contract, and an additional obligation can not be grafted thereon’by parol testimony. Wyche v. Winship, 13 Ga. 808; Lester v. Fowler, 43 Ga. 190; Howard v. Stephens, 52 Ga. 448; Goodman v. Fleming, 57 Ga. 350; Smith v. Newton, 59 Ga. 113; Haley v. Evans, 60 Ga. 157; Bond v. Perrin, 145 Ga. 200 (88 S. E. 954); Georgia Casualty Co. v. Dixie Trust &c. Co., 23 Ga. App. 447, 452 (98 S. E. 414). It will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract. Bullard v. Brewer, 118 Ga. 918 (45 S. E. 711). So we are of the’opinion that the defendant should not have been allowed by parol to add other terms to those set out in the notes given for the purchase-money of this land, and in the bond for title from the vendor to her, as these instruments constituted a complete contract.

We recognize the difficulty of always applying the rule against admitting parol evidence to add to, take from, or vary a written instrument. It is often difficult to say when parol evidence offered is a mere explanation of the consideration of notes, and when it is an attempt to attach a condition to the contract or to add new terms thereto. Boynton v. Twitty, 53 Ga. 214. What we have said does not conflict with the rule that parol evidence is admissible to show the circumstances under which a note was made, to explain the consideration, and show that it is not in fact based on the consideration which appears on its face, and what its true consideration was. Anderson v. Brown, 72 Ga. 713; Burke v. Napier, 106 Ga. 327 (32 S. E. 134). Here the effort is not only to show that the consideration of the note sued on was different from that named in the 'notes and in the bond for title; but such purpose is to set up a collateral agreement which imposes upon the vendor additional and other terms. The conclusión to which we have come is that the court did not err in striking the portions of the answer of the defendant which set up the collateral agreement between her and the vendor, touching improvements which the latter was to make upon the property purchased.

What is said above renders it unnecessary for us to consider the alleged equities set up by the defendant in her answer as amended, as these equities spring from; and depend upon, the parol collateral agreement which we have held can not be set up to add new and additional terms to the contract of sale embraced in the purchase-money notes and the bond for title from the vendor to this defendant.

We do not deem it necessary to consider any of tbe other errors alleged to have been committed by the trial court, as the ruling made in the first division of this opinion disposes of the case.

Judgment affirmed.

All the Justices concur, except Gilbert, J., absent.