Cody & Edgar v. Automobile Financing Inc.

140 S.E. 634, 37 Ga. App. 452, 1927 Ga. App. LEXIS 336

• Court: Court of Appeals of Georgia
• Decided: November 21, 1927
• Docket: 18162
• Status: Published

Opinion

Bell, J.

1. Where the parties to a sale of an automobile enter into a written contract with respect thereto in which the property is described as one “Nash Touring car, 5 passenger, Model 691, serial No. 239131, motor No. 126524,” and in which it is stipulated that “the vendor does not warrant said property, and make no representations concerning same except that the title to same is in the vendor and free from encumbrance,” such stipulation amounts to a refusal by the vendor to warrant the property except as to title; and where it is not shown that the seller practiced any fraud on the purchaser touching the execution and contents of the contract, nor that there was any accident or mistake in regard to such matters, the purchaser can not contradict the terms of such written agreement by proof of parol express warranties or representations made prior to or at the time of the sale, nor plead a breach of the implied warranties of law, in defense to a proceeding by the seller to collect the purchase money. Angier v. Brewster, 69 Ga. 362; Barron G. Collier Inc. v. Bailey, 31 Ga. App. 197 (2) (120 S. E. 427); Hoffman v. Franklin Motor Co., 32 Ga. App. 229 (4) (122 S. E. 896); Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (2) (56 S. E. 1030); Worsham v. Penn, 32 Ga. App. 189 (2) (122 S. E. 817).

Decided November 21, 1927.

2. While the rule that parol evidence is inadmissible' to add to, take from, or vary a written contract has no application to new and distinct agreements subsequent to the original written contract (Elyea-Austell Co. v. Jackson Garage, 13 Ga. App. 182 (79 S. E. 38), a subsequent agreement in the nature of a novation, modifying the terms of a contract of sale excluding all warranties, must, like any other contract, be supported by a valuable consideration. Widincamp v. Patterson, 33 Ga. App. 483 (4) (127 S. E. 158); Phelps v. Belle Isle, 29 Ga. App. 571 (3) (116 S. E. 217).

3. The affidavit of illegality in this ease fails to show any consideration for the alleged subsequent warranties and agreements the breach of which was relied on as the basis for a failure of consideration or abatement of the purchase-price of the automobile. Roscorla v. Thomas, 3 Q. B. 234, Clark on Contracts (2d ed.), 138. In this respect the ease differs materially from Dortch v. Bishop, 27 Ga. App. 720 (109 S. E. 674), and Widincamp v. Patterson, supra. It is also to be distinguished on its facts from the ease of Snellgrove v. Dingelhoef, 25 Ga. App. 334 (103 S. E. 418).

4. The court did not err in striking the affidavit of illegality.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur. Richard B. Russell Jr., for plaintiffs in error. Key, McClelland & McClelland, R. II. Kimball, contra.