54 Ga. 527 | Ga. | 1875
G. M. Byne sued out a distress warrant for rent against R. H. Alley and levied it on a billiard table. The table was claimed by Kemp & Mock. Alley had given to them a note for the purchase money with the words added “ the same being for one four pocket billiard table and fixtures, the said table to be subject for purchase money.” The plaintiffs proved that Alley was in possession of the table and introduced the note to the jury and closed. The claimants offered to prove by Alley and Mock, that the title was to be in Kemp & Mock until the purchase money was paid, that such was the contract of sale. The court ruled out the evidence on the ground that the contract of sale was the note, and it being in writing could not be varied by parol. We do not think that the contract of sale is to be found in the note. The note is simply a promise to pay money for the billiard table, signed by one of the parties and he the purchaser. It is not a bill of sale, nor evidence of the contract of sale. It is not signed by the sellers, nor is it its purpose to pass the title or describe the terms of sale. It is only signed by the purchaser, and its object is to promise to pay the money and to set out the consideration for the promise. In a word, one part of the contract only is in the note — the promise to pay ; the other part, the conveyance of the property, of the title to it, and the terms thereof, rest in parol, and of course may be proved by parol testimony.
The judgment is therefore reversed and a new trial ordered.'