Garvin v. Worthington Pump and MacHinery Corporation , 62 Ga. App. 240 ( 1940 )

1. "The rule that contemporaneous evidence is generally inadmissible to contradict or vary the terms of a valid written instrument (Civil Code of 1910, § 5788) [Code of 1933, § 38-501] is not violated by proof of a new and distinct subsequent agreement in the nature of a novation. Civil Code (1910) § 5794 [ § 38-507]. But the novation, to be valid, must be supported by some new consideration. Civil Code (1910), § 4226 [ § 20-115]; Collier Estate v. Murray, 145 Ga. 851 (90 S.E. 52)." Wimberly v. Tanner, 34 Ga. App. 313 (129 S.E. 306).

2. In the instant case, the petition setting up "a separate and distinct verbal undertaking" which contradicted or varied the terms of the valid written agreement between the parties, and which was in the nature of a novation, failed to show any new consideration for the novation. It follows that the novation was invalid, and that the action was properly dismissed on general demurrer.

Judgment affirmed. MacIntyre and Guerry, JJ.,concur.

DECIDED MARCH 15, 1940.