Bowdoin v. Kingloff ( 1960 )

On Motion for Rehearing.

It is contended on rehearing that because testimony of the plaintiff to the effect that they would brick up the wall under the carport and correct certain defects “as a condition to the closing” was admitted without objection, this court has erroneously reversed the case on the general grounds. Swanson v. Mobley, 33 Ga. App. 791 (127 S. E. 806) and similar cases cited in this connection hold that, regardless of the doctrine that preliminary negotiations are merged in the written instrument and parol evidence will not be admitted to vary its terms, nevertheless, if such evidence is admitted without objection and if it sustains the verdict rendered a new trial should not be granted on the general grounds. The evidence here fails, however, for the reason that the case is laid upon inducements and a sale contract between the plaintiff and the defendants, but the actual sale was between the plaintiff and another as buyers and a corporation for whom the defendants were acting as agents as seller. As stated in Smith v. White, 75 Ga. App. 303, supra, the plaintiff by accepting the deed (as well as the warranty) of the seller made his election to deal with the latter, and he has no second choice.