17 Ga. App. 388 | Ga. Ct. App. | 1915
Dissenting Opinion
dissenting. Parol evidence is inadmissible to add to, take from, or vary the terms of a written contract. Civil Code, § 4268. Negligence in failing to read a written contract and in relying upon representations'of the other party to the contract bars
Lead Opinion
So much of the defendant’s answer, as attempted to set up fraud in the procurement of the note which was the basis of the suit presented no defense, and the amendment containing an amplification of this contention should have been rejected. However, inasmuch as the actual consideration for the note was not stated therein, its only recital as to consideration being the general phrase “for value received,” it was within the power of the defendant to set up and prove the true consideration, and failure of the consideration; and the defendant’s answer, in so far as it attempted to set up a failure of consideration (though perhaps subject to special demurrer), was not so fatally defective as to be subject to an oral motion to dismiss. Where the consideration of a contract is not integrated in the instrument, the real consideration is always a proper subject-matter of inquiry, and proof of such consideration does not conflict with the rule which prohibits that a written contract be altered or varied by parol. Pryor v. Ludden, 134 Ga. 288 (67 S. E. 654, 28 L. R. A. (N. S.) 267). The court therefore erred in striking so much of the defendant’s answer as attempted to set up a failure of the consideration, and in rendering judgment for the plaintiff.
Judgment reversed.