Cooper v. Vaughan
Decision Date | 10 March 1950 |
Docket Number | No. 2,No. 32709,32709,2 |
Citation | 58 S.E.2d 453,81 Ga.App. 330 |
Parties | COOPER et al. v. VAUGHAN et al |
Court | Georgia Court of Appeals |
SYLLABUS BY THE COURT.
Where the evidence showed a written contract whereby, for an expressed consideration of $90 per month, one of the defendants, acting through the other defendant, leased to the plaintiffs certain machinery and equipment for a period of twelve months, unmixed with fraud as to the subject matter of the written agreement, parol evidence, though admitted without objection, to the effect that the defendant also agreed, as part of the expressed consideration, to allow the plaintiffs to use the premises where the machinery and equipment were then located, falsely representing himself to be the owner of the premises, was without probative value to vary the terms of the written instrument. Accordingly, the trial judge, hearing the case without the intervention of a jury, erred in considering such parol evidence and in rendering judgment for the plaintiffs for damages alleged to have been sustained because of being dispossessed by the true owner of the premises.
(a) The case is distinguishable from those where the oral contemporaneous agreement relied upon is alleged to have been the inducement or consideration for a written contract having its own separate and distinct terms.
Howard U. Vaughan and Joseph Berman brought suit against Roy R. Cooper and George T. Edwards in the Civil Court of Fulton County, alleging the following: The defendants have damaged the plaintiffs in the sum of $5,634.30 by reason of the following facts: On October 10, 1945, the plaintiffs were desirous of obtaining a business location for conducting a meat market and poultry business, and on that date a concern, McBride and White, was retiring from business at 479 Mitchell Street, S. W., in Atlanta, Georgia, and upon being contacted referred the plaintiffs to the defendants. The defendant Cooper informed the plaintiffs that the business property, together with the equipment used in connection with the business operated by McBride and White, belonged to the defendant Edwards, all of which could be leased by the plaintiffs for a monthly rental of $90. On October 16, 1945, the plaintiffs entered into an agreement with the defendant Edwards, represented by the defendant Cooper, whereby the plaintiffs leased the said premises known as 479 Mitchell Street, Atlanta, Georgia, for a period of twelve months from October 16, 1945, at $90 per month, which sum included the hire of the said equipment and the rental for the said real estate. The plaintiffs entered into a written agreement for the hire of the said personal property, a copy of which was attached to the petition as Exhibit 'A' and made a part thereof. This agreement is shown to be between George T. Edwards and the plaintiffs, dated October 16, 1945, and recites that for the sum of $90 per month payable in advance, Edwards has leased to the plaintiffs, for a period of twelve months, certain described machinery and equipment located at 479 Mitchell Street, S. W., in Atlanta, Georgia. Paragraph marked 'Eighth' provided: 'It is further expressly understood and agreed that any verbal claims or agreements respecting the said property shall be and hereby are waived and that all agreements between the parties are embodied in this indenture.'
It was alleged that the agreement for the use of the building was verbal, and that the entire consideration to be paid for the use of the real estate and the personal property was set out in the written lease agreement for the personal property. The plaintiffs went into possession on October 16, 1945, and remained in possession of the premises at 479 Mitchell Street, S. W. and paid the contract price for the lease of the real estate and personal property for a period of four months. The plaintiffs then learned that the defendant Edwards was not the owner of the said premises, and the plaintiffs were ordered to vacate the said premises by the true owner. The said premises were never at any time owned by the defendant Edwards. The petition then sets out the earnings of the plaintiffs, acting as partners, and the items of damage by reason of being forced to vacate the premises and their inability to obtain another location, and alleges that the defendant Cooper in all the matters complained of acted for and on behalf of the defendant Edwards as his agent. It was alleged that the said Cooper and the said Edwards, acting through his agent, servant and employee Cooper, well knew that Edwards did not own the said real estate and had merely a lease thereon which expired on February 14, 1946, and that the said false representations were made to the plaintiffs by the said Cooper and the said Edwards, acting by and through the said Cooper, for the purpose of inducing the plaintiffs to rely upon the false representations, that they had no reason to believe them false, relied upon them and were thereby deceived, and as a result injured and damaged as set out in the petition. Damages were prayed in the sum of $5,634.30.
The defendants filed an answer denying all allegations of the petition except that they were defendants.
Upon a hearing before the Hon. Robert Carpenter, judge of the Civil Court of Atlanta, presiding without the aid of a jury, the evidence, so far as material to a decision of the case, was as follows:
Joseph Berman testified:
Howard U. Vaughan testified: The witness also testified as to items of loss because of being forced to move.
James C. Howard, Jr., testified that he was a practicing attorney and had searched the title records as to the ownership...
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...OCGA § 13-2-2(1); Adams v. North American Business Brokers, 168 Ga. App. 341, 343, 309 S.E.2d 164 (1983); accord Cooper v. Vaughan, 81 Ga.App. 330, 338, 58 S.E.2d 453 (1950). The agreement constituted a valid contract partially in writing and partially parol. Tanner v. Tinsley, 152 Ga. App.......
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