Branan v. Warfield & Lee

• Decision Date: 11 February 1908
• Docket Number: 867.
• Citation: 60 S.E. 325,3 Ga.App. 586
• Parties: BRANAN v. WARFIELD & LEE.
• Court: Georgia Court of Appeals

60 S.E. 325

3 Ga.App. 586

BRANAN v. WARFIELD & LEE.

No. 867.

Court of Appeals of Georgia

February 11, 1908

Syllabus by the Court.

An entirely different contract from that evidenced by a writing cannot be pleaded or proved by parol as a substitute for that embodied in such writing. Civ. Code 1895, § 5201.

[Ed Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 1756.]

A false statement is not fraudulent when there is no reason why the statement should be believed and acted upon.

[Ed Note.-For cases in point, see Cent. Dig. vol. 23, Fraud, §§ 17-23.]

That a defendant, with full opportunity to read a mortgage note about to be executed by him, signed it without reading, and that it did not contain the contract as made, is no ground for the introduction of parol evidence to vary its terms, and pleas dependent entirely upon such evidence were properly stricken.

[Ed Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 2016.]

Error from Superior Court, Wilkinson County; H. G. Lewis, Judge.

Trial of illegality between Warfield & Lee and O. F. Branan. From the judgment, claimant Branan brings error. Affirmed.

Lindsey & Carswell, for plaintiff in error.

F. Chambers & Son, for defendant in error.

RUSSELL J.

Warfield & Lee brought suit by attachment for the recovery of the purchase price of two mules, and also foreclosed a mortgage on certain personal property executed to secure the same. The cases were carried by appeal to the superior court, and there, with consent of counsel, the two cases were consolidated. The defendant's pleas were stricken by the court and an amendment offered by him was disallowed, and error is assigned on these rulings.

1. The defendant, by affidavit of illegality to the mortgage fi. fa and by way of answer to the declaration in attachment, pleaded failure of consideration, rescission, and that the note should only have been $350, instead of $390, the "note being signed through a misapprehension, as the price agreed upon was $185 and $165 for said mules." The amendment offered to the plea was as follows: "Defendant further alleges that said note was signed through the fraud practiced on defendant by W. G. Lee as a member of the firm of Warfield & Lee. The said Lee represented to defendant that said note was for the sum of $350, and that the health and soundness of said mules were guaranteed. It was at night when the note was signed, and defendant signed the same through the representations of said Lee, a member of the firm of Warfield & Lee, which representations were untrue." The copy of the mortgage note attached to the declaration, as well as to the mortgage foreclosure, contained the following condition, following the description of the mules sold: "It is expressly understood that the said Warfield & Lee does not warrant the health of said animals." The court did not err in striking the pleas, nor in disallowing the amendment offered thereto. Neither the pleas nor the amendment could be sustained without the admission of parol evidence absolutely at variance with and contradictory of the terms of the written contract. Parol evidence is admissible to explain an ambiguity, and to show the true consideration of a contract to be different from that stated therein, or it may be shown by parol that the written contract was subsequently modified or abrogated, but it is fundamental that an entirely different contract from that evidenced by the writing cannot be pleaded or proved by parol as a substitute for that embodied in the writing. To this effect the decisions are numerous.

2. Another exception to the rule is recognized where the contract was...