Thomas v. Eason

69 S.E.2d 729

Ga.

1952

Check Treatment

THOMAS v. EASON; et vice versa.

Nos. 17731, 17732

Supreme Court of Georgia

MARCH 12, 1952

REHEARING DENIED MARCH 25, 1952

petition, the answer and the amended answer and all of the the papers in the case, and you have the right to refer to them as often as you see fit, in your consideration, but remember that the petition and answer is not evidence.” It is the duty of counsel to aid the court in determining what issues should be submitted to the jury.

Anderson v. State, 196 Ga. 468, 471 (26 S. E. 2d, 755). If counsel in the present case desired any additional instruction on the issues as submitted, a request so to charge should have been presented to the trial court.

The evidence was sufficient to support the verdict for the petitioner, and the trial court did not err in overruling the defendant‘s motion for new trial as amended.

Judgment affirmed. All the Justices concur. Duckworth, C.J., concurs specially.

DUCKWORTH, C.J., concurring specially. I concur in the judgment and in the opinion except in so far as the opinion holds that, since the general charge covers the substance of the written requests, it was not error to fail to charge as requested. It is my opinion that all of the written requests were subject to the criticism that they were inapt or incorrect, and, for these reasons, it was not error to refuse to charge as requested.

W. J. Forehand, P. Q. Bryan and Robert Culpepper Jr., for plaintiff in error.

Ford & Houston, contra.

HEAD, Justice. The trial court did not err in overruling the general demurrers of the defendant to the petition. A cause of action for specific performance of the contract was duly set forth in precise allegations. The special demurrer of the defendant to the allegation that the purchase price “was tendered to said defendant for said land under the terms of said contract,” as being a conclusion, is without merit. That the tender was made under the terms of the contract is not a conclusion, when viewed with the other allegations as to tender. The allegations of tender in their entirety had reference to an ultimate fact, susceptible of proof (

Schneider v. Smith, 189 Ga. 704, 706 (5) 7 S. E. 2d, 76), and the allegations are not ambiguous as contended.

While, under the terms of the written contract, it was contemplated that the petitioner would procure a loan under the Bankhead-Jones Act (U. S. C. A. Supp., § 1001), this provision of the option was solely for the benefit of the petitioner. That he may have procured his loan from an independent source is not a matter about which the defendant can complain.

The alleged parol agreement for a side payment of $3000, upon which the defendant relies, is void, unenforceable, and affords no defense to the written contract. Parol evidence is inadmissible to add to, take from, or vary a written contract. If only a part of the contract is reduced to writing, and it is manifest that the writing was not intended to speak the whole contract, then parol evidence is admissible. Code, § 20-704. The allegation upon which the defendant relies as to a parol agreement for a side payment is an attempt to add to a complete contract, and this allegation contradicts the written contract as to the consideration to be paid to the defendant by the petitioner.

“To bring a case within the rule admitting parol evidence to complete an entire agreement of which a writing is only a part, two things are essential. First, the writing must appear on inspection to be an incomplete contract; and second, the parol evidence must be consistent with and not contradictory of the written instrument.”
Forsyth Manufacturing Co. v. Castlen, 112 Ga. 199, 210 (37 S. E. 485). See also
Brannen v. Brannen,
135 Ga. 590, 591 (69 S. E. 1079);
Smith v. Baker, 137 Ga. 298 (72 S. E. 1093);
Bank of Lavonia v. Bush, 140 Ga. 594 (79 S. E. 459);
Roberts v. Investors Savings Bank, 154 Ga. 45, 52 (113 S. E. 398);
LaGrange Female College v. Cary, 168 Ga. 291 (147 S. E. 390).

The alleged parol agreement for a side payment of $3000, under the provisions of the contract in this case, would be void for the reason that such an agreement is against the public policy of this State.

Robinson v. Reynolds, 194 Ga. 324 (21 S. E. 2d, 214); .

The allegation that the “defendant, knowing that petitioner was an ordained minister of the gospel, who claimed to have been called of God to preach redemption to a lost world, reposed the utmost confidence in his honesty and integrity and agreed to let the petitioner read the option to him,” is wholly insufficient under the Code, § 37-707, to establish confidential relations between the petitioner and the defendant. The fact that the defendant may have reposed trust and confidence in the petitioner did not create such a confidential relationship.

Dover v. Burns, 186 Ga. 19, 26 (196 S. E. 785).

The defendant‘s contention that the petitioner did not read the entire contract to him falls squarely within the rules laid down by this court in

Lewis v. Foy, 189 Ga. 596, 598 (6 S. E. 2d, 788), as follows: “It has often been held by this court that a party to a contract who can read must read, or show a legal excuse for no doing so, and that fraud which will relieve a party who can read must be such as prevents him from reading.” (See cases cited).

The defendant alleges that he did not have his glasses, that they were inaccessible, and that the petitioner stated he was in a hurry. This allegation is answered in

Lewis v. Foy, supra, in the following language: “The fact that the defendant in the instant case took the deed out of the plaintiff‘s hands when she undertook to read it will not excuse her for failure to read it, nor does the fact that she did not have her glasses, that they were inaccessible, and that she could not read without them justify her failure to read; nothing being alleged to show an emergency making it necessary that she sign without delay. The defendant‘s saying he was in a hurry constituted no emergency.” (Italics ours.)

The defendant‘s answer set up no defense to the written contract, and the general grounds of the motion for new trial were properly overruled. Any failure to charge by the trial judge, as contended by the defendant, could not have been injurious to the defendant, since his defense to the action for specific performance could not be sustained as a matter of law.

Judgment affirmed on main bill of exceptions; cross-bill dismissed. All the Justices concur.

ON MOTION FOR REHEARING.

Counsel for the defendant insist in their motion for rehearing that we have overlooked the decision in

Brooks v. Matthews, 78 Ga. 739 (3 S. E. 627). The case has never been followed by this court. It was referred to in , , and in , where the ruling in the case was limited to its particular facts. While only five Justices participated in the case, this would in no wise avoid the limitation therein of the case, since under the Code, § 6-1611 five Justices might have overruled the case.

The ruling in

Brooks v. Matthews, supra, is in conflict with older decisions of this court. In , it was held: “That defendant signed a written agreement without reading it, and it did not contain the contract as in fact made, is no ground for the introduction of parol evidence to vary its terms, etc. It is not the duty of courts to relieve parties from the results of their gross negligence.” See also, in this connection, ; ; ; ; ; .

In this case the defendant contends that the plaintiff was guilty of “fraud” in not reading to him provisions of the contract which specifically made void any agreement for a “side payment.” The defendant will not be heard to complain of any alleged “fraud” based on a failure of the plaintiff to read the entire contract, when the alleged agreement for a “side payment” was void independently of the contract provisions declaring such agreements to be void.

Motion for rehearing denied. All the Justices concur.