Curtis v. Pierce ( 1924 )

Atkinson, J.

The evidence that was excluded was essential to the plaintiff’s case. The controlling question therefore is, did the judge err in excluding the testimony ? The attorney for the plaintiff states in his brief that he fully recognizes “the rule that parol evidence cannot be admitted to add to, take from, vary, or contradict a valid written instrument,” but insists that it would not offend this rule to admit the evidence. This position was based on the contention as stated in the brief: “that the written contract as shown by the record relates exclusively to the lands and the personal properties named in the bond for title, and not to the sale of the business, and that said contract does not even purport to refer to the business sold,. . and has no bearing [or] . . relation theretothat “it is apparent from reading [the contract] .. that the parties never intended for it to refer . . to anything but the physical properties, to wit: the lands and the furniture and fixtures.” Referring specially to paragraph seven of the contract, viz: “It is further agreed that all of the agreements and covenants between the parties are included in this contract, the same being executed in duplicate,” it is said that this refers only to “the agreements between the parties relating to the real estate and personal property and the insurance and the replacing of furniture, and does not relate . . to the business nor to the good will.” The attorney cites Spier v. Lambdin, 45 Ga. 319; Armstrong v. Atlantic Ice &c. Co., 141 Ga. 464 (81 S. E. 212); Barrie v. Miller, 104 Ga. 312-316 (30 S. E. 840, 69 Am. St. R. 171); McCommons t. Williams, 131 Ga. 313 (62 S. E. 230); Carter v. Griffin, 114 Ga. 321 (40 S. E. 290); Roberts v. Mathews, 77 Ga. 458. These cases differ on their facts from the ease under consideration, and do not require a-judgment of reversal. The bond for title and written inventory therein mentioned, and the written contract executed in duplicate, refer to the same transaction, rest on the same consideration, were contemporaneous, and must be considered as making one contract. The sale of the furniture was not a sale of separate articles or chattels, but, as indicated by the inventory, it was a sale of “articles of furniture, bedding, linens, and fixtures in the Pierce Hotel and Pierce Hotel Annex.” It is to be inferred that they were not sold to be carried away and devoted to other uses. It is provided in the fifth paragraph:' “It is further agreed between both parties to this contract that in the event said parties of the second part desire to replace furniture, furnishings, and equipment hereinbefore referred to, with new fur^niture, furnishings, and equipment, that the same may be done by and with the consent of the said party of the first part.” Reasonably construed, this implies use of the personalty in connection with use of the realty in carrying on the hotel business, and, when considered in connection with the gross or entire consideration to be paid for all the property, shows a joint sale of the personalty and realty and the hotel business of which that property constituted an essential part. If the sale be viewed as separate sales of only the realty and personalty, how much was paid for the realty and how much for the personalty? What use would the purchaser have for the “Pierce Hotel and Pierce Hotel Annex” and all the furniture and fixtures therein, and why the right to substitute furniture to take the place of furniture in the hotel, if the hotel business was not included in the sale? As it was a joint sale of all the property including the business, the above-quoted paragraph seven of the contract necessarily applies to the whole contract and by its express terms excludes all covenants or agreements not expressed in the writing. It follows that parol evidence as to prior or contemporaneous covenants by the vendor, not to engage in the hotel business in the same town, or subsequent admissions by the vendor of such prior covenants, would not be admissible. A different question would be presented if it were sought to show that a covenant restricting the right of the vendor to engage in the. hotel business in the same town was omitted from the writing by fraud, accident, or mutual mistake; but there is no such contention. The question relates to the contract as written. The judge did not err in excluding the evidence, and in refusing a temporary injunction.

Judgment affirmed.

All the Justices concur, except Russell, 0. J.j, dissenting.