Pryor,v,. Ludden & Bates Southernmusic House
| Decision Date | 19 March 1910 |
| Court | Georgia Supreme Court |
| Parties | PRYOR v . LUDDEN & BATES SOUTHERNMUSIC HOUSE |
(Syllabus by the Court.)
Sales (§ 428*)—Action for Price—Defenses
—Breach of Warranty.
Where a note recites that its consideration is the purchase price of a particular described piano, in a suit thereon by the promisee the maker may plead, in defense of the action, that the plaintiff represented that the piano was new and capable of being used as a musical instrument, and that the defendant, acting on this representation and warranty, and without actual or constructive knowledge of its true condition, bought it, when in point of fact it is worse than secondhand and not capable of being used as a musical instrument.
[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1214-1223; Dec. Dig. § 428.*]
Certified by Court of Appeals.
Action by the Ludden & Bates Southern Music House against A. M. Pryor. Judgment for plaiutiff, and defendant brings error to the Court of Appeals, which desires instructions of the Supreme Court. Instructions given.
E. K. Overstreet, for plaintiff in error.
Strange & Cobb, for defendant in error.
EVANS, P. J. The Court of Appeals desires the instruction of the Supreme Court as to the following question of law:
"Where there is a sale of a specific article of personal property, such as a certain particular piano, and the purchaser gives to the seller a promissory note note stating that the consideration thereof is the particular designated article sold, and the note is otherwise silent as to representations and warranties, is the defendant precluded by what is commonly called the 'parol evidence rule, ' or by any other principle of law, from pleading in defense to an action on the note that the plaintiff represented that the piano was new and was suitable for the use for which such articles are usually and generally intended (i. e., in the case of the piano, that it was new and capable of being used as a musical instrument), and that the defendant, acting on this representation and warranty, and without actual or constructive knowledge of its true condition, bought it, when in point of fact it is worse than secondhand and not capable of the use mentioned (i. e., in the case of the piano, of being used as a musical instrument)?"
In deciding whether a note given for the purchase money of a specific article may be reduced in amount, or a recovery entirely defeated, by showing a breach of a contemporaneous oral express warranty, regard mustbe had to two well-defined rules of law, one of which is the rule which prohibits an unconditional written promise to pay money to be changed into a conditional one by a contemporaneous parol agreement, and the other is the parol evidence rule, which rejects, in the absence of fraud, accident, or mistake, parol evidence which adds to, varies, or contradicts the written memorial of a contract. The principle is well established that a negotiable instrument which expresses on its face an absolute promise to pay cannot be cut down into a conditional promise by a contemporaneous parol agreement. Thus, where a note expressed on its face that it was given for the rent of a warehouse, in a suit upon the note, a plea of total or partial failure of consideration resulting from a breach of a collateral engagement of the landlord to make certain repairs will not be allowed. Wyche v. Winship, 13 Ga. 208. Nor can the maker show a prior or contemporaneous parol agreement that the payee was to accept a less amount. Loudermilk v. Loudermilk, 93 Ga. 443, 21 S. E. 77. Though a maker of a note, when sued by his promisee, is always permitted to show by parol a want or failure of consideration, yet he will not be allowed, unless fraud exists, to prove that his obligation to pay was dependent or conditional upon the promisee's compliance with a contemporaneous or prior agreement not expressed in the note. Lester v. Fowler, 43 Ga. 190; Howard v. Stephens, 52 Ga. 448; Goodman v. Fleming, 57 Ga. 350; Haley v. Evans, 60 Ga. 157; Hirsch v. Oliver, 91 Ga. 554, 18 S. E. 354; Dinkier v. Baer, 92 Ga. 432, 17 S. E. 953; Scaife v. Beall, 43 Ga. 333.
As an incident to a sale of a chattel the law implies a warranty, which the parties may waive or change by express agreement. The warranty, whether express or implied, necessarily enters into the consideration of the article sold. A plea of breach of warranty is the substantial equivalent of a plea of failure of consideration; and the defense is allowed upon the principle that the consideration of a note between the parties is always open to inquiry so far as the promise to pay depends upon its existence, continuance, or amount, and that, as a warranty is incident to every sale of a chattel, parol evidence is admissible, not for the purpose of showing that a different promise from the written one was made, but that it is different in legal effect as a consequence of the want, cessation, or shrinkage of the consideration. Aultman v. Mason, 83 Ga. 212, 9 S. E. 536. The...
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