Matheson v. Jones , 30 Ga. 306 ( 1860 )

By the Court

Lumpkin, J.,

delivering the opinion.

We do not think the rule which excludes parol testimony from adding to a written contract applicable to this case. The payee of the note, to induce Darius E. Mathewson to sign the note sued on, assures him, as the plea states, that he had in his hands four hundred and fifty dollars, which would be coming to Thomas D. L. Eyan, the principal in the note, upon the settlement of their medical copartnership, which amount should be credited upon the note, and that upon this representation he acceded to the contract; all of which was well known to Lewis Jones, the plaintiff in the action.

Is not Mathewson entitled to this credit ? "Would it not be a fraud to withhold it? Either the payee has realized this sum, or he has not. If he holds it, he is bound to apply it to Ryan’s debt; and if he surrenders it up and the security is thereby prejudiced, the loss must fall upon Clark, or Jones, the bearer. If he made a false representation, or was even mistaken as to the matter, it is' equally certain that the security will be protected.

Our conclusion, consequently, is, that the plea should not have been stricken, and that if sustained by the proof, the defendant is entitled to claim the relief which he seeks.