Reams v. Thompson , 5 Ga. App. 226 ( 1908 )

Powell, J.

(After stating the foregoing facts.)

1. The plea, so far as it related to the alleged agreement made at the time the notes were executed, was a direct, unmasked attempt •to vary the express terms of a written contract by a parol contemporaneous agreement. The fact that there was consideration for this parol agreement does not render the rule forbidding such contradiction of a written contract any the less applicable. The express terms of a written instrument are not to be varied by proof of a parol contemporaneous contract, any more than they are to be varied by proof of a parol contemporaneous nudum pactum. Jones v. Taylor, ante, 161 (62 S. E. 992). The cases cited by counsel for plaintiff in error are easily distinguishable: Denham v. Walker, 93 Ga. 501 (21 S. E. 102), related to an executed parol subsequent agreement by which the terms of the original contract had been changed; Dooly v. Gorman, 104 Ga. 767 (31 S. E. 203), was based on the proposition that the plaintiff procured the contract by fraud, and did not involve the question here decided.

2. The plea, so far as it attempted to set up that subsequently to the execution of the written contract the plaintiff agreed to accept another as a purchaser of the land, in substitution for the defendant, is bad, if for no other reason, in that the alleged agreement related to lands and an interest therein, and was within the statute of frauds. No such performance was shown as to fulfill ihe requirements of any of the exceptions to that statute. See also Patterson v. Ramspeck, 81 Ga. 808 (10 S. E. 390).

Judgment affirmed.