93 Ga. 765 | Ga. | 1894
Waring brought suit against Epps upon a promissory note which was one of a series given for the purchase of a city lot. The note contained this sentence: “ This note is given for the purchase money of a lot in Madison, Ga.” The defendant filed certain special pleas, which were stricken on motion of the plaintiff", and a verdict was then rendered in favor of the latter, the defendant introducing no evidence. The material allega
In our judgment, these special pleas set up a good defence to the plaintiff’s action, and ought not to have been stricken. The trial judge struck the pleas upon the idea that, accepting as true the allegations therein made, the plaintiff was attempting by parol to vary the terms of an absolute written contract. At first glance, this may seem to be true, but a more careful examination will lead to a contrary conclusion. In the first place, it is evident from the facts alleged in the pleas that the note in suit does not contain the entire contract between the parties. There were other notes and a bond for titles; and besides, the main stipulations between the parties lay in parol, and it was not their intention that these stipulations should be merged in and covered by the writings. But independently of all this, the pleas distinctly allege that the notes were fraudulently procured by representations falsely made; and if all the allegations of the pleas are true, the deliberate purpose of these representations was to deceive the defendant. If this be so, there is no principle, either of law or justice, which will allow the plaintiff to enforce payment of the notes in palpable violation of the terms of the real con
The facts alleged in the pleas in the present case constituted sufficient grounds for rescission, and the effect of a rescission would be to defeat a recovery by the plaintiff upon the purchase money notes, including the one now in controversy. Judgment reversed.