Cooper v. Vaughan

Decision Date10 March 1950
Docket NumberNo. 2,No. 32709,32709,2
Citation58 S.E.2d 453,81 Ga.App. 330
PartiesCOOPER et al. v. VAUGHAN et al
CourtGeorgia 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: 'We [he and Howard Vaughan] leased the premises from Mr. Cooper, who was his representative. It [the lease] is a definite agreement between Mr. Edwards, Mr. Vaughan and myself for the use of this equipment, which also included the use of the space to have the equipment in and the use of it, this document being marked plaintiff's exhibit 1 by the reporter for identification. * * * We had an oral lease for the use of this property for one year. We were supposed to pay $90 a month for the use of the property and the equipment. In other words, my testimony is that while this agreement as to the personal property called for $90 a month that I had an oral agreement for the use of the premises known as 479 Mitchell Street without additional rent being paid. * * * I also had a conversation with Mr. Cooper in which he said that Mr. Edwards was the owner of the property, * * * I relied on what Mr. Cooper told me concerning the situation. After I went in there I paid the rent to Mr. Cooper made out to Mr. Edwards. At all times I had my relations with Mr Cooper. * * * I had the oral lease for the use of the premises at the same time we signed this written agreement for the use of the equipment in that particular space. In other words, the two agreements were simultaneous. I kept the premises there for four months, paying my rent to Mr. Edwards through Mr. Cooper, as I testified. * * * At the time I received this notice [from the true owner to vacate] I spoke with Mr. Cooper about it, and at that time I found out that he was representing Mr. Edwards as Mr. Edwards not being the owner. Mr. Cooper told me that then, and that was the first time he had made that known to me. At the time the original agreement was made I asked Mr. Cooper if Mr. Edwards was the owner, and at that time he represented Mr. Edwards as the owner. [The witness then detailed items of loss because of the ouster.] * * * I say I had an oral contract for lease with Mr. Cooper as the agent of Mr. Edwards for one year from the time he signed the lease on the equipment in the building. The rental was $90 per month which included the equipment and the space used. The oral part was about the space. The equipment was supposed to be in there for the use of that also. We had an oral contract for one year. * * * $90 a month included the rental of the space and equipment. * * * The use of the space was nothing more than an oral agreement, but $90 a month was for both the use of the space and equipment. I had an oral agreement for the use of the space and equipment. I had an oral agreement for the use of the space without naming a separate and distinct consideration for the use of the space, that being included in the lease. There was no written agreement as to the use of the space. * * * We were allowed the use of the space for the consideration of $90 a month, also the equipment. I said I had a conversation in the presence of somebody named White who told us Mr. Edwards was the owner of the building, being the sub-lessor for the building. Mr. White told us Mr. Edwards was the owner of the building. As to Mr. Cooper's not telling me at that time that Mr. Edwards was the owner of the building--he didn't say he was not the owner and he didn't say he was the owner, either, and he was standing there. * * * I took Mr. Coper's non-voice in the matter. * * * He didn't say he didn't own it. * * * I asked Mr. Cooper if Mr. Edwards was the owner of the building, and he said he did, he was the owner. I asked him that when we signed the lease. * * * He said Mr. Edwards was the owner of the space we were leasing and the equipment. * * * He said Mr. Edwards was the owner of the building. Put it that way. That was the only investigation I made as to who owned the building.'

Howard U. Vaughan testified: 'I remember signing that agreement [the written agreement]. * * * I was there, but things like that I couldn't understand, and I left that up to Mr. Berman because he was more qualified to look after it than I was. * * * We got a notice to move out of the building in January, I believe, to vacate by the first of February, and we did vacate the premises. * * * At the time we were operating this business it was earning around a hundred dollars a week. * * * The $90 included the equipment and building.' 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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