Roberts v. Investors' Sav. Co.

• Decision Date: 17 August 1922
• Docket Number: 2972.
• Parties: ROBERTS v. INVESTORS' SAV. CO.
• Court: Georgia Supreme Court

113 S.E. 398

154 Ga. 45

ROBERTS v. INVESTORS' SAV. CO.

No. 2972.

Supreme Court of Georgia

August 17, 1922

Syllabus by the Court.

The general rule is that parol evidence is not admissible to add to, take from, or vary a written contract.

If a part only of a contract is reduced to writing, such as a note given in pursuance of a contract, and it is manifest that the writing was not intended to speak the whole contract, then parol evidence is admissible.

Where the writing does not purport to contain all the stipulations of a contract, parol evidence is admissible to prove portions thereof not inconsistent with the writing.

The rule which permits parol proof in cases of apparent incompleteness in written statements of the obligations of the parties, denies parol proof, variant from the written terms, which imposes additional and other terms, dependent upon a prior or contemporaneous parol agreement.

All previous negotiations are merged in the subsequent written contract, and an additional obligation cannot be grafted thereon by parol testimony.

Where one buys real estate from another, executes notes which recite that they are given for part of the purchase money of certain described real estate, and takes from the seller a bond for title, which recites the full purchase money to be paid, that the purchaser is to pay off certain incumbrances on the property as part of the purchase money, and that the purchaser conveys to the seller his equity in certain other real estate as part of the purchase money, and has given notes for the remainder of the purchase money, the total amount of the incumbrances assumed, of the equity so conveyed, and of the notes so given being equal to the amount of the purchase money recited in the bond for title, the notes and bond for title constitute a complete contract of sale, and parol evidence is inadmissible to impose additional and other terms dependent upon a prior or contemporaneous parol agreement by which the seller was to make certain improvements on the premises as a part of the contract of sale, and the court did not err in striking so much of the answer of the defendant as set up such prior or contemporaneous parol agreement.

The above rulings render it unnecessary for us to consider the alleged equities set up by the defendant in her answer as amended, as these equities depend upon the parol collateral agreement, which we have held cannot be set up to add an additional term to the contract of sale evidenced by the purchase-money notes and the bond for title from the vendor to the defendant.

It is unnecessary to consider any of the other errors alleged to have been committed by the trial court, as the rulings above made dispose of the case.

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Suit by the Investors' Savings Company against Leila Roberts. Judgment for plaintiff, and defendant brings error. Affirmed.

The Investors' Savings Company brought suit in Fulton superior court against Leila Roberts as maker, and Lula M Nicholes and H. W. Nicholes & Son, a firm composed of H. W and M. W. Nicholes, to recover the principal, interest, and attorney's fees upon two notes, each for $1,488.50, dated July 23, 1914, and due, respectively, December 23, 1916 and 1917. These notes recited they were given for part of the purchase of No. 534 Ponce de Leon avenue, Atlanta, Ga., and the plaintiff prayed that a special lien be established upon said property in its favor for the principal, interest, and attorney's fees due on said notes.

Leila Roberts, in her answer, admitted the execution of the notes sued upon, but alleged that they were obtained from her through misrepresentation and deceit practiced upon her by H W. Nicholes, the agent of Lula M. Nicholes; that H. W Nicholes, acting as agent aforesaid, agreed, at the time she was inveigled into signing and delivering said notes to him, to make certain improvements on her home, the property referred to in this suit; and that he failed and refused to do so, for which reason she has refused to pay said notes. Prior to the Investors' Savings Company obtaining said notes, she informed it of the failure of the consideration of said notes, and warned it against trading therefor. At the time said notes were given, Lula M. Nicholes, through her agent, H. W. Nicholes, promised to place on said property another sleeping porch in a skillful and workmanlike manner, and, in attempting to do so, so damaged her house that it decreased in value $3,500. She tried many times to persuade him to remedy the defects, and to place the sleeping porch on her house in a skillful and workmanlike manner, but he refused to do so, whereupon she refused to pay said notes, she being injured and damaged by such failure in the sum of $3,500.

By an amendment to her answer defendant alleged that she entered into a contract for the purchase of the real estate described in the petition in this case, and to pay for the same as therein alleged. The contract of sale was negotiated by the vendor, Mrs. Lula M. Nicholes, through her husband, as her agent and representative. The purpose she had in making said purchase was to conduct in the house on said premises a boarding house, which was well known to the vendor. The condition of the house was not suitable for that purpose, and she stated to said H. W. Nicholes that she would not purchase the property unless said described improvements were made thereon, because without them it would not be suitable for a boarding house. She then set out these improvements in detail. After considering the question of improvements, the vendor, through her said agent, agreed that she would make said improvements, if this defendant would purchase said property on the terms which had been discussed, to which the vendee consented. She agreed to purchase this property, thus improved, for the sum of $12,365, for a part of the price of which she gave the notes sued upon. Said improvements were a part of the consideration for which she was to pay the vendor that sum. The vendor then executed and delivered to her a bond for title, in the penal sum of $24,731, of even date with the notes, and conditioned that, whereas, the vendor at that day agreed to sell to the vendee a tract of land, fully described therein, and known as "No. 534 Ponce de Leon avenue," according to present numbering of houses in the city of Atlanta, for the sum of $12,365.50, to be paid as follows: $3,150 by the transfer by the vendee of her equity in the lot on the south side of Ponce de Leon avenue, $4,750 by the assumption of a loan of that amount on said property, and the balance of $4,465.50 by three notes, of $1,488.50 each, due on or before December 23, 1915, (1916?), and 1917, respectively, with interest at 7 per cent. until paid--if the vendee should well and truly pay said sums of money at the time or times therein specified, then the vendor was bound to execute to the vendee, her heirs and assigns, a good and sufficient title, with full covenants of warranty, to the aforesaid described property.

Defendant alleged that the vendor did undertake to make said improvements, but did not in good faith do so according to plans and specifications, which had been agreed upon; but the kind and character of improvements were so indifferent and inferior that they greatly injured the house and rendered it of less value. She then described the improvements made and the defects therein. The cost of said improvements, had they been made in accordance with the agreement and promise of the vendor, would have been $3,000 or other large sum, and to that extent was a part of the consideration of said three notes. At many times prior to the maturity of the first note, due December 23, 1915, H. W. Nicholes as agent for the vendor, promised to make said repairs and additions. She refused to pay said note at maturity, because the same had not been properly made, but finally paid the first note, but only after the plaintiff's agent, Rex Mooney, had agreed that he would see that the vendor made said repairs, alterations, and additions, and H. W. Nicholes, as agent of the vendor, renewed his promise to make said additions and alterations in the manner agreed upon. When the second note became due she flatly refused to pay the same, as the vendor had not complied with her part of said agreement, and finally, after the solicitation of plaintiff's agent, Mooney, and at the renewed promise of H. W. Nicholes, agent of the vendor, she paid $500 on said notes and refused to pay the balance until said vendor complied with her contract. The exact relation between her and her vendor, through her agent, H. W. Nicholes, was well known to said Mooney, agent of the plaintiff. Not only were the efforts made by the vendor to make said improvements a failure in part of the consideration of said notes, but the way in which the work was done injured the building to the extent of $2,000, or other large sum. The failure of the vendor to make said improvements as agreed upon, and the manner in which the work was done, left the house in a condition less adapted to the use for which she purchased it. She was unable to accommodate such patrons as she could have accommodated, because the sleeping porch could not be used with the comfort that would have been enjoyed by the boarders occupying the upper rooms, if the upper porch had been put in the condition it was to be put under said agreement. In this way she lost customers and patrons, to her damage in the sum of $1,500, or other large sum. She protested against the character of the improvements which the vendor was having done, and notified her, through her agent and husband, that said improvements did not comply with the agreement made, which was a part of the...