16 S.E.2d 797 | Ga. Ct. App. | 1941
1. "Parol contemporaneous evidence is inadmissible generally to contradict or vary the terms of a valid written instrument."
2. "Receipts for money are always only prima facie evidence of payment, and may be denied or explained by parol." This section of the Code means that "a receipt for money is an exception to the otherwise universal rule that parol evidence is inadmissible to vary or alter the terms of a valid written instrument."
3. As between the maker and the payee of the conditional note in this case the maker could not, over objection, introduce evidence denying the mutual promises made in the note, a written contract which constituted the terms and conditions of such contract, and by parol substitute contradictory terms and conditions which would amount to substituting by parol an entirely different contract. Wellmaker v. Wheatley,
4. "If a receipt is a contract and not simply a receipt, there is no reason why it should be susceptible of attack or explanation by parol more than any other contract." Walters
v. Odom,
5. The judge committed reversible error in allowing the defendant to vary by parol the terms of the valid written instrument.
6. It is not necessary to discuss the other ground of the motion for new trial as this ground relates to matters that will not probably arise on the next trial.
The suit here was based on two notes, one for $52.50, the other for $200 principal and $6.84 interest. The evidence demanded a finding that the $52.50 note had been paid, and what is hereafter said will apply only to the $200 note.
At the time of the execution of the $200 note, which contained a provision that "for the full payment of this note I bind and pledge the following property: 150 New Hampshire pullets located on the farm of W. E. Norrell at Cole Mountain, Georgia," there was also executed by the plaintiff payee and the defendant maker, as part of the same transaction, the following contemporaneous agreement in writing: "This is to certify that a note of $200 has been given by W. E. Norrell [defendant] to apply on account and notes. Mr. Norrell agrees that this does not involve a settlement of the account in full." Though the writing is on two pieces of paper, yet the entire contract is in writing and it takes both writings to make the real contract of the parties, and the legal effect is the same as if one paper held the contents of the note and the contemporaneous writing. Marietta Savings Bank v.Janes,
If there had been only an unconditional negotiable promissory note, and no other writing executed in connection therewith, in which note there was merely a recital of the consideration, the maker, as between himself and the payee, could have explained by parol evidence not only what the consideration was, but that it had failed; or, he could have explained by parol that there was no consideration. Such a plea, substantiated by proof, would have been good. Mimbs v. Stephens Hardware Co.,
We therefore think that the judge committed reversible error in allowing the defendant to testify that he gave the note merely as an accommodation. This was varying by parol the terms of the valid written contract, and was in violation of the rule of evidence stated in Code, § 38-501, supra. The defendant contends that the judge did not err in allowing him to so testify, and cites Ramsey Fender Motor Co. v. Chapman,
The defendant testified that he did not know how much he owed the plaintiff either at the time of the execution of the written contract or at the time of the trial. There was no testimony which furnished data sufficient to enable the jury to calculate what a partial failure of consideration if any, would have been.Coffee v. Worsham,
In the instant case, if the defendant could have pleaded and proved that there was no indebtedness on which the $200 note could be credited at the time he gave the note, he could have defeated a recovery. He would have brought himself within the rule laid down in the Chapman case, supra; for if there was no indebtedness and nothing about which to contract, it is obvious that a writing undertaking to set out the terms and conditions of a contract which related only to a pretended thing, a fictitious thing, a thing that did not exist, a nothing, is not valid but is void. A writing which undertakes to contract about a fictitious thing, a thing not a reality, even though it be denominated a consideration in the writing, is in fact without consideration. The consideration is only pretended or fictitious, and the contract, the terms and conditions of which purport to relate only to it, is, in the eyes of the law, nothing. It is a void writing, and the fact that it is void may be shown by parol under the rule of evidence stated in Code, § 38-503.
The contemporaneous writing in this case was not simply a receipt, but was a contract, and there is no reason why it should be *16 susceptible of attack or explanation by parol more than any other contract. Walters v. Odom, supra.
As the case is to be tried again, there is no necessity to discuss the other ground of the motion for new trial as it relates to matters that probably will not arise on a new trial.
Judgment reversed. Broyles, C. J., and Gardner, J., concur.