Lee v. Garland , 208 Ga. 251 ( 1951 )

Candler, Justice.

Otis K. Lee filed a suit for equitable relief in the Superior Court of Fulton County against Reuben Garland. The petition in substance alleges: The plaintiff was indicted for murder on June 13, 1950. He employed the defendant, an attorney, to represent him for an agreed fee of $1200, and $500 in cash was paid by him on the employment contract. Subsequently, the defendant demanded an additional fee of $4000, and the plaintiff, on July 3, 1950, gave him a promissory note for that amount, due and payable as follows: $1200 on July 5, 1950, and the balance in 90 days; and, contemporaneously therewith and as security therefor, he executed and delivered to the defendant a security deed, with a power of sale, conveying to him certain real estate in Fulton County. It is alleged that the plaintiff’s promise to pay the additional fee of $4000 was contingent upon the happening of either of two events, namely, a trial in which the plaintiff was represented in Fulton Superior Court by the defendant and at which witnesses, after being subpoenaed, were examined, and where a jury verdict was obtained, or securing the plaintiff’s release from the charge against him without a trial. It is also alleged that the defendant, on the plaintiff’s arraignment for trial, filed a plea admitting that the plaintiff was guilty of involuntary manslaughter in the commission of an unlawful act; and that no obligation, therefore, rests upon the plaintiff to pay the contingent fee of $4000. It is also alleged that the defendant has advertised the property described in the security deed for sale and that he will wrongfully sell it at public auction unless restrained. Besides for process, the prayers of the petition are that the note and the security deed be declared null and void and that a sale of the property involved be enjoined. The petition was dismissed on general demurrer, and the exception is to that judgment. Held:

1. The whole tenor of the petition in the case at bar is to change by parol an absolute (Unconditional promissory note into a conditional obligation; and that can not be done in the absence of fraud, accident, or mistake, the allegation of which must always be full and explicit. Lester v. Fowler, 43 Ga. 190; Haley v. Evans, 60 Ga. 157; Hirsch v. Oliver, 91 Ga. 554 (18 S. E. 354); Lunsford v. Malsby, 101 Ga. 39 (28 S. E. 496); Bullard v. Brewer, 118 Ga. 918 (45 S. E. 711); Johnson v. Nisbet, 137 Ga. 150 (72 S. E. 915); Probasco v. Shaw, 144 Ga. 416 (87 S. E. 466). In other words, where parties have reduced to writing what appears to be a complete and certain agreement, it will in the absence of fraud, accident, or mistake be conclusive^ presumed that the writing contains the entire contract. Bullard v. Brewer, supra. “It is in vain to have writings, if parties can be allowed deliberately to reduce a contract to writing and then set up by parol a totally different contract.” Haley v. Evans, supra. It is true, of course, that the maker of a note, when sued, has the right to show by parol, if he can, a want or failure of consideration, but he will not be allowed to prove that his obligation to pay was dependent or conditional upon the promisee’s compliance with a prior or contemporaneous agreement not expressed in the note, unless the execution of the note was induced by fraud, accident, or mistake. Lester v. Fowler, supra; Howard v. Stephens, 52 Ga. 448; Goodman v. Fleming, 57 Ga. 350; Dixon v. Bond, 18 Ga. App. 45 (88 S. E. 825). In the present case, it is not alleged that any prior or contemporaneous agreement making payment of the note contingent on the happening of some future event was omitted from the note either by fraud, accident, or mistake. As to that the petition is wholly silent, and in the absence of such an allegation we must and will presume conclusively that the note in question correctly speaks the contract.

2. Under the foregoing ruling, the plaintiff was not entitled to the injunctive relief sought; and, accordingly, the petition failed to state a cause of action for any of the relief prayed. Therefore, it was not erroneous, as contended, for the court to sustain the defendant’s demurrer and dismiss the petition.

Judgment affirmed.

All the Justices concur, except Atkinson, P.J., and Head, J., who dissent.