35 Ga. App. 19 | Ga. Ct. App. | 1926
The petition of Bullard and Powell against McKenzie Trust Company waived discovery and sought an accounting and the recovery of $3,975 from transactions growing out of a -written contract, providing, with its amendment, in brief, that the defendant trust company was to deed a lot to the plaintiffs, who were architects and builders, for the sum of $1,400; that the plaintiffs were to build a house thereon to cost not less than $3,000, and, for the purpose of defraying the cost of such improvements,
In the written novation modifying the original written contract it was stated that “the said Bullard & Powell have not been able to secure a loan of $3,000 on said property, as contemplated in said [original] contract,” that “the McKenzie Trust Company has advanced to said Bullard & Powell the sum of $465 in payment of certain materials and labor used in construction of house on above described property,” that “the McKenzie Trust Company has agreed to allow the said Bullard & Powell to place a loan of $2,500 on said property, and deed it subject to said loan, according to terms of said [original] contract;” and it is provided that the
“An auditor’s report of the evidence taken by him upon the hearing of a case constitutes a portion of the record thereof, and
The parties by their written novation, modifying the original written contract, having fixed and agreed upon the sum of $2,500 as the amount for which a loan should be placed upon the house and lot which formed the subject-matter of their agreement, the auditor erred in admitting, and considering as an element in his finding of damages for the plaintiffs, parol evidence which varied the express written provision by attempting to show that the defendant, prior to the novation, had wrongfully refused to allow the plaintiffs to contract for a larger loan of $3,500 on the property; and the court erred in overruling the defendant’s exceptions to the admission and consideration of this evidence, and in approving the auditor’s findings based upon this as an element of damage.
On the bill of exceptions brought to the Supreme Court by the defendant below, in which the judgment approving the auditor’s report, except by adding an allowance for interest on the principal
Judgment reversed.