Garvin v. Worthington Pump and MacHinery Corporation

Court of Appeals of Georgia

Garvin v. Worthington Pump and MacHinery Corporation

8 S.E.2d 589, 62 Ga. App. 240, 1940 Ga. App. LEXIS 632

CourtCourt of Appeals of Georgia

DecidedMarch 15, 1940

Docket27969.

StatusPublished

Cited by1 cases

This text of 8 S.E.2d 589 (Garvin v. Worthington Pump and MacHinery Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Garvin v. Worthington Pump and MacHinery Corporation, 8 S.E.2d 589, 62 Ga. App. 240, 1940 Ga. App. LEXIS 632 (Ga. Ct. App. 1940).

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Opinion

Broyles, C. J.

1. “The rule that contemporaneous evidence is generally inadmissible to contradict or vary the terms of a valid written instrument (Civil Code of 1910, § 5788) [Code of 1933, § 38-501] is not violated by proof of a new and distinct subsequent agreement in the nature of a novation. Civil Code (1910), § 5794 [§ 38-507]. But the novation, to be valid, must be supported by some new consideration. Civil Code (1910), § 4226 [§ 20-115]; Collier Estate v. Murray, 145 Ga. 851 (90 S. E. 52).” Wimberly v. Tanner, 34 Ga. App. 313 (129 S. E. 306).

*241 Decided March 15, 1940. Shelby Myrick, Howell & Post, for plaintiff. Alston, Foster, Mmse & Sibley, Philip H. Alston Jr., for defendant.

2. In the instant case, the petition setting úp “a separate and distinct verbal undertaking” "which contradicted or varied the terms of the valid written agreement between the parties, and which was in the nature.of a novation, failed to show any new consideration for the novation. It follows that the novation was invalid, and that the action was properly , dismissed on general demurrer.

Judgment affirmed.

MacIntyre and Guerry, JJ., concur.

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Broyles, C. J.

1. “The rule that contemporaneous evidence is generally inadmissible to contradict or vary the terms of a valid written instrument (Civil Code of 1910, § 5788) [Code of 1933, § 38-501] is not violated by proof of a new and distinct subsequent agreement in the nature of a novation. Civil Code (1910), § 5794 [§ 38-507]. But the novation, to be valid, must be supported by some new consideration. Civil Code (1910), § 4226 [§ 20-115]; Collier Estate v. Murray, 145 Ga. 851 (90 S. E. 52).” Wimberly v. Tanner, 34 Ga. App. 313 (129 S. E. 306).

*241 Decided March 15, 1940. Shelby Myrick, Howell & Post, for plaintiff. Alston, Foster, Mmse & Sibley, Philip H. Alston Jr., for defendant.

2. In the instant case, the petition setting úp “a separate and distinct verbal undertaking” "which contradicted or varied the terms of the valid written agreement between the parties, and which was in the nature.of a novation, failed to show any new consideration for the novation. It follows that the novation was invalid, and that the action was properly , dismissed on general demurrer.

Judgment affirmed.

MacIntyre and Guerry, JJ., concur.

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8 S.E.2d 589, 62 Ga. App. 240, 1940 Ga. App. LEXIS 632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garvin-v-worthington-pump-and-machinery-corporation-gactapp-1940.

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