46 Ga. App. 336 | Ga. Ct. App. | 1933
Gertrude Rudder sued A. L. Belle Isle in the municipal court of Atlanta for principal, interest and attorney’s fees on a promissory note, the material part of which, so far as this decision is concerned is as follows:
“Miami, Florida, August 28, 1925.
“Ninety days after date, for value received, promise to pay to the order of Gertrude Rudder two thousand dollars, payable at . . in Miami . . , with interest thereon at the rate of 6 per cent, per annum from date until fully paid. Interest payable semiannually. The maker and indorser of this note further agree to waive demand, notice of nonpayment and protest, and in case suit shall be brought for collection thereof, . . to pay reasonable attorney’s fees. ,. . A. L. Belle Isle (Seal), Miami Shores (Seal).”
In so far as this decision is concerned, we deem it only necessary to set out the following amendment to the original plea and answer:
“ 1. Defendant admits the execution of a written instrument, copy of which as amended June 20,1931, is attached to plaintiff’s petition.
“2. That at the time of the execution and before delivery of said written instrument it was agreed between plaintiff and defendant that the instrument was not to become binding as an obligation upon defendant in any sum whatsoever until and unless the plaintiff sold a certain parcel of real estate known as Lot 13, Block No. 6, Mid Golf Subdivision, Miami Beach, Florida, for this defendant, and that said writing was therefore delivered by defendant to plaintiff and accepted by plaintiff upon such express condition.
“3. That the plaintiff has not complied with such condition, in that plaintiff has not sold the parcel of land (described in the preceding paragraph), and for this reason this defendant is not liable to pay the amount sued upon or any part thereof.”
Plaintiff demurred generally to defendant’s plea and answer as amended, and the trial judge of the municipal court of Atlanta rendered the following judgment: “It is hereby considered, ordered, and adjudged that the said demurrer be and the same is hereby sustained and answer stricken, except paragraph 4 which relates to attorney’s fees, and the demurrer is overruled as to paragraph 4.”
It is quite true that “parol contemporaneous evidence is inadmissible generally to contradict or vary the terms of a valid written instrument.” Civil Code (1910), § 5788. However, the following rule laid down in Heitmann v. Commercial Bank of Savannah, 6 Ga. App. 584 (3) (65 S. E. 590), is a well-recognized rule that has been often followed by the appellate courts of this State: “A written document may, by parol or other extrinsic evidence, be shown not to be a contract at all, because of the non-performance of a condition precedent as to which the writing is silent. Accordingly, it may be shown by parol or other extrinsic evidence that the writing is not a valid or enforceable legal obligation because it does not possess finality of utterance as a completed, all-comprehensive, and presently operative embodiment of the contracting parties.” We quote at some length from pages 592 and 593 of the Heitmann case as follows: “In Burke v. Dulaney, 153 U. S. 228 (14 Sup. Ct. 816, 38 L. ed. 698), the maker of a promissory note, given for the purchase price of an interest in a mine, was allowed to show by parol that he delivered the note to the payee on condition that it was not to be binding until he (the maker) had inspected the mine and approved it; that he had inspected the mine and disapproved it and had demanded back the note. The Supreme Court of the United States, through Mr. Justice Harlan, said: The issue here is between the original parties to the note. And the evidence offered by the appellant and excluded by the court did not in any true sense contradict the terms of the writing in suit, nor vary their legal import, but tended to show that the written instrument
Taking the plea in the case at bar precisely as it is written, it does not, to our minds, undertake to add to or vary the terms of the note, but does aver that the writing was never a completed contract, for the reason that it was not to become so until the plaintiff had sold for the defendant certain land, and that this had never
Judgment affirmed.