17 S.E.2d 765 | Ga. Ct. App. | 1941
The judge, by consent trying the case without a jury, erred in finding for the defendant, and in overruling the motion for new trial.
The court erred in finding for the defendant. The defendant's own testimony showed that some kind of agreement with reference to the payment of commissions was a part and parcel of the sale between the parties. The written agreement sued on was signed and delivered at the same time the defendant gave his note for $125 to complete the transaction. Since there was admittedly an agreement about commissions, forming a part of the sale, the reduction to writing of an agreement with reference thereto, whether it was the one orally agreed on or not, was binding on the parties under the well-known rule of law that prior and contemporaneous agreements are merged in the final written expression of the agreement between the parties, in the absence of fraud, accident, mistake, or duress. Since there was an agreement on the subject of commissions which formed a part of the consideration for the sale the written agreement entered into, although allegedly different from the oral agreement, could not be said to be based on a past consideration.
The court erred in finding for the defendant, and in overruling the plaintiff's motion for new trial.
Judgment reversed. Stephens, P. J., and Sutton, J., concur.