P & O Mach. Works, Inc. v. Pollard, 42497

• Decision Date: 25 January 1967
• Docket Number: No. 3,No. 42497,42497,3
• Citation: P & O Mach. Works, Inc. v. Pollard, 153 S.E.2d 631, 115 Ga.App. 96 (Ga. App. 1967)
• Court: Georgia Court of Appeals
• Parties: P & O MACHINE WORKS, INC. v. C. P. POLLARD

Page 631

153 S.E.2d 631

115 Ga.App. 96

P & O MACHINE WORKS, INC. v. C. P. POLLARD.

No. 42497.

Court of Appeals of Georgia, Division No. 3.

Jan. 25, 1967.

Richard T. Cowan, Savannah, for appellant.

Robert E. Falligant, Savannah, for appellee.

Syllabus Opinion by the Court

DEEN, Judge.

1. While parol evidence, even though admitted without objection, of agreements and stipulations made prior to the execution of the written instrument has no probative value so as to alter or vary its terms (Cleghorn v. Shields, 165 Ga. 362, 141 S.E. 55), parol evidence is admissible to prove a new and distinct subsequent agreement (Code § 38-507) or modification of the original agreement (Covington v. Brewer, 101 Ga.App. 724, 115 S.E.2d 368), provided it is supported by a consideration. Wimberly v. Tanner, 34 Ga.App. 313(1), 129 S.E. 306; Collier Estate v. Murray, 145 Ga. 851(1), 90 S.E. 52; Long Tobacco Harvesting Co. v. Brannen, 98 Ga.App. 142, 149, 105 S.E.2d 390.

2. Plaintiff sold the defendant a business, the bill of sale including 'all assets' and 'all materials in stock.' There were at the time physically on the premises certain materials which had been specially ordered by the seller for fabrication into splined shafts to be made to the specifications of Owen-Richards Company, a purchaser, and which materials were not regularly kept in stock. This order and others were incomplete at the time of the sale of the business. According to the testimony of the plaintiff and another witness, it was agreed by the parties that the seller would remain on until he had completed the pending contracts. He remained for about a month, finishing 25 or 30 contracts. It became apparent to him that he would be unable to finish the Owen-Richards contract by the time shafts were demanded; he thereupon entered into a parol agreement with the defendant's agent that...