134 Ga. 288 | Ga. | 1910
The Court of Appeals desires the instruction of the Supreme Court as to the following question of law: “Where there is a sale of a specific article of personal property, such as a cer
In deciding whether a note given for the purchase-money of a specific article may be reduced in amount or a recovery entirely defeated by showing a breach of a contemporaneous oral express warranty, regard must be had to two well-defined rules of law: one of which is the rule which prohibits an unconditional written promise to pay money to be changed into a conditional one by a contemporaneous parol agreement, and the other is the parol-evidence rule which rejects, in the absence of fraud, accident, or mistake, parol evidence which adds to, varies, or contradicts the written memorial of a contract. The principle is well established that a negotiable instrument which expresses on its face an absolute promise to pay can not be cut down into a conditional promise by a contemporaneous parol agreement. Thus, where a note expressed on its face that it was given for the rent of a warehouse, in a suit upon the note a plea of total or partial failure of consideration resulting from a breach of a collateral engagement of the landlord to make certain repairs will not be allowed. Wyche v. Winship, 13 Ga. 208. Nor can the maker show a prior or contemporaneous parol agreement that the payee was to accept a less amount. Loudermilk v. Loudermilk, 93 Ga. 443 (21 S. E. 77). Though a maker of a note, when sued by his promisee, is always permitted to show by parol a want or failure of consideration, yet he will not be allowed, unless fraud exists, to prove that his obligation to pay was dependent or conditional upon the promisee’s compliance with a contemporaneous or
As an incident to a sale of a chattel the law implies a warranty, which the parties may waive or change by express agreement. The warranty, whether express or implied, necessarily enters into the consideration of the article sold. A plea of breach of warranty is the substantial equivalent of a plea of failure of consideration; and the defense is allowed upon the principle that the consideration of a note between the parties is always open to inquiry so far as the promise to pay depends upon its existence, continuance, or amount,, and that as a warranty is incident to every sale of a chattel, parol evidence is admissible, not for the purpose of showing that a different promise from the written one was made, but that it is different in legal effect as a consequence of the want, cessation, or shrinkage of the consideration. Aultman v. Mason, 83 Ga. 212 (9 S. E. 536).
The parol-evidence rule as relating to written contracts has been thus stated: “Where parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident, or mistake, be conclusive^ presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements is inadmissible to add to, take from, or vary the written instrument.” Bullard v. Brewer, 118 Ga. 918 (45 S. E. 711). Where, the law requires that the contract, in order to be valid, shall be expressed in writing, the writing alone must be depended upon to ascertain the contract of the parties, and its deficiencies can not be supplied by parol proof. Where the law does not require the agreement to be reduced to writing in order .to fender it valid, and it is insisted that the writing contains a complete agreement of the parties, it becomes a question'of intention, as to whether or not the agreement has been integrated in the writing. In such a ease, in order to allow parol evidence to be admitted to show other terms, it must appear, either from the contract itself or from the attendant circumstances, that the contract is incomplete and what is sought to be shown as additional terms neither conflicts with nor contradicts what is contained in the writing.
The essential thing to be ascertained in a suit upon a promissory note given for a particularly described chattel, in order to exclude parol evidence, is whether or not it varies the terms of the note, or, if the agreement has been integrated in the note, whether it varies the terms of the contract as expressed in the note. Ordinarily a promissory note given for the purchase-price of an article is intended to contain only the obligation of the vendee, and that obligation is to pay the vendor a definite sum of money at a definite time. The vendor’s obligation has no place in a purely negotiable instrument given by the vendee; and in a suit upon a promissory note given for the price of personal property, which does not purport to disclose the contract of sale, evidence of a parol warranty of the property and a breach of the warranty is admissible. Kemp v. Byne, 54 Ga. 527.
Applying these observations to the query of the Court of Appeals, we do not think that a note, which expresses that the consideration thereof is the purchase-price of a, specific article (nothing more appearing), indicates upon its face that the terms of sale have been integrated in the writing, and parol evidence is admissible to show a failure of consideration consequent upon a breach of a contemporaneous parol express warranty.