Bond & Maxwell v. Perrin , 145 Ga. 200 ( 1916 )

Atkinson, J.

1-6. The discussion in the. case of Pryor v. Ludden & Bates Southern Music House, 134 Ga. 288 (67 S. E. 654, 28 L. R. A. (N. S.) 267), takes a broad range and announces doctrines which may be summarized as follows: (1) In the case of a sale of a chattel, where the parties have reduced to writing what appears to be a complete and valid contract of sale, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements as to the quality of the property is inadmissible to add to, take from, or vary the written instrument. (2) The terms of such a contract may be embodied in a promissory note, and will be binding upon both parties after the note has been delivered by the maker and accepted by the payee, and the property has been delivered in pursuance of the contract, notwithstanding the paper was not signed by the payee. (3) In a written contract of sale of a chattel, the writing may express warranties of such character as to exclude certain- warranties which the statute implies; but if it omits'to do so, the law writes into the instrument, as by implication, that the seller warrants that he has a valid title and right to sell, that the article sold is merchantable and reasonably suited to the use intended, and'that he knows of no latent defects undisclosed. (4) When such implied warranties become a part of such written instrument, they are protected, as any other part of the paper, from change or alteration by parol. (5) In such a contract the terms of the contract expressing the consideration may be varied by parol. (6) If the writing does not purport to express all of the terms of the contract, the terms which are omitted may be supplied by parol, if the contract is not one which the law requires to be in writing; but those terms which are embodied in the contract, either by express terms or by implication, can not be added to or varied by parol.

The authorities cited in the opinion support the several propositions above stated. It is unnecessary to restate them here. Since the rendition of that decision other decisions have been rendered both by this court and the Court of Appeals, dealing with one or more of the propositions stated. John A. Roebling’s Sons Co. v. Southern Power Co., 142 Ga. 464 (83 S. E. 138, 54 L. R. A. (1915B) 900); Anthony v. Cody, 135 Ga. 329 (69 S. E. 491); Case Threshing Machine Co. v. Broach, 137 Ga. 602 (73 S. E. 1063); Anthony Shoals Power Co. v. Fortson, 138 Ga. 460 (75 S. E. 606); Whigham v. Hall, 8 Ga. App. 509 (70 S. E. 23); Toller v. Hewitt, 12 Ga. App. 496 (77 S. E. 650).

7. The principles decided in Pryor v. Ludden & Bates, supra, conform to the ruling in Bullard v. Brewer, 118 Ga. 918 (45 S. E. 711). The latter ease involved a paper which purported to set out all the terms of a valid contract of sale; and it was held that they could not be varied nor others added by parol. The decision, however, did not deal with the questions which would be involved if the paper did not purport to contain all the terms of the contract. It was cited as authority in the case of Pryor v. Ludden & Bates, to the extent of the principles therein applied. According to the question propounded by the Court of Appeals to this court in the ease of Pryor v. Ludden & Bates, the note did not purport to set out all of the terms of the contract of sale, but merely “that the consideration thereof is the particular designated article sold, and the note is otherwise silent as to representations and warranties.” Answering the question on the basis that the note contained terms as indicated above, “and nothing else appearing,” as pointed out in the decision by this court, it was ruled, on the hypothesis that the note did not purport to set out the terms of sale, that the matters set up in the special plea could be proved by parol. It thus appears that there was a difference in the result of the two cases, but no conflict in the principles announced. In later decisions the doctrines of both cases have been recognized, and the distinction above mentioned pointed out. Case Threshing Machine Co. v. Broach, and Anthony Shoals Power Co. v. Fortson, supra.

8. Applying the law as announced in the preceding divisions of the opinion to the ease under consideration, we hold: (a) The paper purports on its face to show all the terms of a valid contract of sale of certain personal property. (b) The paper contains no reference to the subject of warranties, and the warranties implied by law are a part of the written contract, as by implication. (c) The warranties as to the soundness of the automobile as set out in the special plea are different from the implied warranties included in the contract, and can not be set up and proved by parol. (d) That part of the special plea which sets up that, in addition to the note, a horse and wagon was given as a part of the consideration for the automobile, being explanatory of the consideration, could be set up and proved by parol. (e) So much of the special plea as set up a breach of the implied warranties as to the quality of the automobile, and upon the strength thereof alleged failure of consideration of the note, could also be shown by parol; and so could damages to cover the cost of repairing the machine be proved by parol, if the circumstances were such as would otherwise render such damages recoverable.

All the Justices concur, except Lumpkin and Beck, JJ., dissenting.

Lumpkin, J.

I can not concur in the ruling made in this case. I do not think that the contract is a complete contract of sale, or purports to be such, so as to exclude defenses of breach of express parol warranty or failure of consideration. The in- ' strument is in substance a promissory note for tbe purchase-price of a machine, with a reservation or reconveyance of title to the vendor, to secure the amount of the note. It is not a bill of sale or a conveyance, and does not purport to deal with the question of warranty. If the purchaser had given a promissory note for purchase-money and a mortgage to secure it, this would not have constituted a complete contract of sale. Nor does this instrument now before us do so. A careful consideration of the various cases on the subject will show that those relied on in the opinion of the majority do not control the case. Nor do I think that the point actually decided in Pryor v. Ludden & Bates Southern Music House, 134 Ga. 288, goes as far as the majority of the court indicate. Nauman v. Ullman, 102 Wis. 92 (78 N. W. 159); Kemp v. Byne, 54 Ga. 528; John A. Roebling’s Sons Co. v. Southern Power Co., 142 Ga. 464. In Bullard v. Brewer, 118 Ga. 918, relative to the animal sold there was a provision in the contract that it was “distinctly understood that I take the risk of the horse dying.” There was also the expression, “a little thick-winded,” which was discussed as not constituting an express warranty, yet being a declaration which modified the implied warranty otherwise arising. I am authorized to say that Beck, J., joins in this dissent.