Syllabus by the Court.
In case
of a sale of a chattel, where the parties have reduced to
writing what appears to be a complete and valid contract of
sale, it will, in the absence of fraud, accident, or mistake
be conclusively presumed that the writing contains the entire
contract, and parol evidence of prior or contemporaneous
representations or statements as to the quality of the
chattel is inadmissible to add to, take from, or vary the
written instrument.
The
terms of a contract for the sale of personal property may be
embodied in a promissory note, and will be binding upon both
parties after the note has been delivered by the maker and
accepted by the payee, and the property delivered in
pursuance of the contract, notwithstanding the paper was not
signed by the payee.
In a
written contract of sale of a chattel, the writing may
express warranties, excluding certain warranties which the
statute implies; but if it omits to do so, the law writes
into the instrument, as by implication, that the seller
warrants that he has a valid title and right to sell, that
the article sold is merchantable and reasonably suited to the
use intended, and that he knows of no latent defects
undisclosed.
Where
the implied warranties become a part of such written
instrument, they are protected, as any other part of the
paper, from change or alteration by parol.
The
consideration expressed in such a contract may be varied by
parol evidence.
If the
writing does not purport to express all the terms of the
contract, the terms which are omitted may be supplied by
parol, if the contract is not one which the law requires to
be in writing; but those which are embodied in the
instrument, either by express terms or by implication, cannot
be added to or varied by parol.
The
principles announced in the opinion in Pryor v. Ludden & Bates Southern Music House, 134 Ga. 288, 67 S.E. 654, 28
L.R.A. (N. S.) 267, do not conflict with the principle
announced in the decision of Bullard v. Brewer, 118
Ga. 918, 45 S.E. 711.
Applying
the law as announced in the preceding notes to the case under
consideration, it was incompetent to set up and prove by
parol so much of the special plea as sought to set up express
warranties as to the quality of the property, but competent
to set up and prove by parol other portions of the plea as
will fully appear in the opinion.
Lumpkin
and Beck, JJ., dissenting.
Certified
Questions from Court of Appeals.
Action
by Bond & Maxwell against G. G. Perrin. Judgment for
defendant, and plaintiffs bring error. Heard on certified
questions from the Court of Appeals. Questions answered.
Where
parties have reduced to writing what appears to be complete
contract of sale, parol evidence of representations as to
quality of chattel is inadmissible.
The
Court of Appeals certified to the Supreme Court the following
questions:
"1. A suit at common law was instituted to recover the
amount due as purchase money for a certain automobile, under
the terms and conditions of the following note and contract:
'$280.00
Elberton, Ga. October 2, 1913.
On or by Dec. 25th after date I promise to pay to the order
of Bond & Maxwell, or their assigns, two hundred and eighty
dollars, payable at Elberton, Ga., with interest from date at
the rate of eight per cent.; also ten per cent. on principal
and interest as attorney's fees,
and all cost of collection. This note is given Bond & Maxwell
for one Maxwell Auto Model Ga. No. 4395. The ownership and
title to the above-described property is retained by Bond & Maxwell under the provision of section 2776 of the Code of
Georgia (1895). It is further agreed and provided by section
3543 of the Code of Georgia (1895), that if said property
dies or is destroyed, that the loss shall fall upon the maker
or makers of this note. Now, in order to better secure the
debt described, hereby sell and convey to Bond & Maxwell the
full and complete title as provided in section 2771 of the
Code of Georgia (1895), to the following property, to wit: *
* * and have received
obligation to reconvey as provided in said section 2771. It
is further agreed that actual delivery of the property herein
conveyed to Bond & Maxwell shall be dispensed with, and that
my possession of all the property herein described shall be
for them and shall be unlawful after the maturity of this
debt, and may be taken by Bond & Maxwell or his assigns
agents, or attorneys without process of law. I further agree
that I will make no charge for keeping any of said property
and that I will pay as hire for the same an amount equal to
the interest and attorney's fees due at any time on this
debt. I further agree that any payments made by me to Bond & Maxwell, or his assigns, shall be first applied to any
unsecured debts I may owe them, and then to this obligation.
I further agree that if Bond & Maxwell, or his assigns,
should take possession of any or all of the property herein
described, that they may sell the same at public outcry, for
cash, after ten days' notice to me in writing of the time
and place of sale, and that the proceeds shall be applied to
the payment of this debt. If more than enough to pay the
debt, the surplus to be paid to me or my assigns. If not
enough to pay this debt, then I shall be liable under this
contract for any balance remaining unpaid. The makers,
indorsers, and securities hereto hereby waive the benefit of
all homestead and exemption rights. Given under the hand and
seal of each.
G. G. Perrin. [ L. S.]
Executed and delivered in the presence of L. L. Maxwell,
Witness.
Filed in office this January 20th 1914.
W. A. Rucker, Clerk.'
Under the ruling made in Pryor v. Ludden & Bates,
134 Ga. 288 [67 S.E. 654, 28 L.R.A. (N. S.) 267], was it
allowable in this suit for the defendant to interpose and
support by parol evidence the following defenses, to wit:
'6. Defendant, for affirmative plea in his behalf, says
that the consideration of the note sued upon represents a
portion of the purchase price of one Maxwell Auto, Model Ga.
No. 4395, as shown on the face of said note; the said
automobile having been sold to defendant by plaintiffs for
one horse valued in the trade at $150, one wagon valued in
the trade at $50, and the note sued upon, and that the
consideration of said note has totally failed, by reason of
the facts hereinafter set out.
7. Defendant purchased said automobile from plaintiffs as a
secondhand automobile, but upon the express warranty of the
plaintiffs that the said machine was in good condition, was
as good as new, and was reasonably suited to the uses for
which defendant intended it, that is, for the ordinary uses
and purposes for which an automobile is intended; and that,
relying on this express warranty of plaintiffs, and without
actual or constructive notice or knowledge of the true
condition of said machine, which was known at the time to
plaintiffs, purchased said automobile, giving therefor the
said wagon, horse, and said note.'
'9. When defendant purchased said automobile it was in
point of fact totally worthless, entirely unfitted for the
purpose ordinarily intended for an automobile, and was
absolutely unmerchantable, by reason of the following facts
existing at the time of the purchase, and the engine,
gearing, and all parts of the machinery of said car were so
badly worn and damaged as to wholly unfit them and prevent
them from performing their several functions in propelling
the automobile. The magneto and coils of said machine were so
worn and in such a defective condition and [as] to make them
useless and wholly worthless; and said automobile is now and
was then of no value whatever.
10. Defendant, when he purchased the said automobile, did not
know and could not have known of the defects existing in said
machine, he being inexperienced with machinery and ignorant
of the mechanism of an automobile, and purchased the said car
relying upon the aforesaid warranties as to the worth and
value of the same made by plaintiffs, old and experienced
automobile dealers.'
'12. By reason of the facts aforesaid, the consideration
of said note has totally failed, and defendant is not liable
to plaintiffs.
13. By reason of the breach of the express warranty of
plaintiffs, as aforesaid, defendant has been damaged in the
following sums: $150, the value of the trade of the horse;
$50, the value of the trade of the wagon; and $75, the amount
expended by defendant in an effort to put the said automobile
in the condition warranted by plaintiffs; and defendant prays
that the court give him judgment against the plaintiffs for
the sum of two hundred and seventy-five dollars, the total
amount of the sums aforesaid.'
2. The contract which forms the basis of the suit in Pryor v.
Ludden & Bates, supra, as appears from the original record,
reads as follows:
'Read carefully before signing. No verbal promises
recognized against this contract.
$350.
Savannah, Ga., Jan. 28th, 1907.
Received of Ludden & Bates S. M. H., under conditional
contract for the sale thereof, as hereinafter stated, one
Kohler & Campbell piano, Style H. Mah. No. 39184, on which I
have this day paid $25; and in addition hereby promise to pay
Ludden & Bates S. M. H. the sum of three hundred and
seventy-five dollars, Oct. 15th, '07, $96 on the 15th day
of each successive October until paid in full, until the
above-named sum with interest shall have been paid in full.
This note is given for the purchase money of items mentioned
herein, and title to and ownership of said items remain and
continue of Ludden & Bates Southern Music House until all
payments are made in full, and the default of payment of any
of the above installments, as they become due, the remaining
payments shall
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