Bullard v. Brewer

• Decision Date: 14 November 1903
• Citation: Bullard v. Brewer, 118 Ga. 918, 45 S.E. 711 (Ga. 1903)
• Parties: BULLARD v. BREWER.
• Court: Georgia Supreme Court

45 S.E. 711

118 Ga. 918

BULLARD v. BREWER.

Supreme Court of Georgia

November 14, 1903

Syllabus by the Court.

1. 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 conclusively 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.

2. Where a note given for the purchase money of a horse contained the statement that it was given to the payee "as per contract for one black horse about seven years old, a little thick-winded," the words "a little thick-winded" did not amount to "an express warranty that the horse was sound, that he had no disease which would render him worthless, and that the 'little thick-windedness' would not hurt him."

3. It is not erroneous to fail to instruct the jury as to the contention of a party when there is no evidence to support it.

Error from Superior Court, Elbert County; H. M. Holden, Judge.

Action by S. S. Brewer against D. C. Bullard. Judgment for plaintiff, and defendant brings error. Reversed.

Z. B Rogers and Arthur Newman, for plaintiff in error.

C. P Harris, for defendant in error.

FISH P.J.

S. S Brewer sued D. C. Bullard on two promissory notes, only one of which is involved in the case as it comes before us. This note was as follows:

"Elberton, Ga. June 16th, 1899.

$50. Nov. 15th after date I promise to pay to S. S. Brewer, or order, fifty dollars, payable at E. L. & S. bank, with interest from date at the rate of 8% per annum, with all cost of collection, including 10% attorney fees. This note having been given to said S. S. Brewer as per contract for one black horse about seven years old, a little thick-winded. It is hereby agreed that the ownership and title to said horse shall remain in said S. S. Brewer until this note is fully paid, and it is distinctly understood that I take the risk of the horse dying. [ Then follows usual homestead waiver and authority to the payee to take possession of the horse at the maturity of the note if the debt should not be then paid.] Given under my hand and seal this 16th day of June, 1899.

D. C. Bullard. [ L. S.]

Attest: T. W. Campbell, N. P."

The defendant pleaded that the plaintiff expressly warranted the horse for which this note was given to be "sound and all right in every respect," but that he proved to be unsound and entirely worthless. Upon the trial the defendant testified, in substance, that at the time he purchased the horse and when the note was given the plaintiff told him that the animal was all right, except that it was a little thick-winded, and said that he would warrant that that would not hurt him; that he purchased the horse relying upon these representations as being true. The plaintiff was permitted by the court, over the objection of the defendant, to testify, in rebuttal, as follows: "I said: "He [the horse] is bellowsed. If you want him, and think he will do your work, I will sell him for less than he cost me.' I said, 'He is bellowsed or thick-winded,' and told him he had a cough. *** I sold him a cheap horse, and lost a good deal on the horse. *** I stated to Mr. Bullard that the horse was bellowsed, and had a cough. *** I sold him as a cheap horse, and an unsound horse. *** I said, 'He is not all right.' I sold him that way. *** I told him he was bellowsed, thick-winded, and had a cough." There was a verdict in favor of the plaintiff. The defendant moved for a new trial, which was refused, and he excepted.

1. One of the grounds of the motion for a new trial was that the court erred in admitting the above-quoted testimony of the plaintiff over the objection of the defendant that it varied the terms of the written instrument sued on, etc. "The rule is well settled that where the parties have reduced to writing what appears to be a complete and certain agreement importing a legal obligation, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the whole of the agreement between the parties; and parol evidence of prior, contemporaneous, or subsequent conversations, representations, or statements will not be received for the purpose of adding to or varying the written instrument. If, therefore, such a writing exists between the parties, and it contains no warranty at all, no warranty can be added by parol. If it contains a warranty of some kind, or to some extent, parol evidence will not be admitted to extend, enlarge, or modify that which the writing specifies." 2 Mechem on Sales, § 1254, and the large number of cases cited, among them the recent case of Seitz v. Brewers' Refrigerating Co., 141 U.S. 510, 12 S.Ct. 46, 35 L.Ed. 837, in which there is...