Hewlett v. Almand

Court of Appeals of Georgia

Hewlett v. Almand

103 S.E. 173, 25 Ga. App. 346, 1920 Ga. App. LEXIS 795

CourtCourt of Appeals of Georgia

DecidedMay 12, 1920

Docket11140

StatusPublished

Cited by16 cases

This text of 103 S.E. 173 (Hewlett v. Almand) 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.

Bluebook

Hewlett v. Almand, 103 S.E. 173, 25 Ga. App. 346, 1920 Ga. App. LEXIS 795 (Ga. Ct. App. 1920).

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Opinion

Jenkins, P. J.

1. An existing contract is superseded and discharged whenever the parties subsequently enter upon a valid and inconsistent agreement completely covering the subject-matter embraced by the original contract. American Sewer Pipe Co. v. Mathews, 19 Ga. App. 248 (3) (91 S. E. 284) ; Housekeeper Pub. Co. v. Swift, 97 Fed. 290 (38 C. C. A. 187).

2. Such a -subsequent agreement, amounting to a substitution of the former contract, may be collected from several different contemporaneous writings which when taken together constitute a new and complete agreement. 13 C. J. 304, § 126 (4). Thus, where parties enter into an antenuptial marriage contract whereby the wife, in consideration of marriage, is to receive, at the death of the husband, the sum of $12,000, and a prescribed income from the said sum during the husband’s life, and where prior to the date of the marriage a similar contract is signed whereby the wife is to receive the named sum of $10,000, but, contemporaneously with the execution of the latter agreement, receives from the intended husband a promissory note for $2,000, the second contract and the contemporaneous note can properly be taken as together superseding and discharging the original agreement, although neither of the two latter instruments refers to the other. The note, being- alleged to have been given in part extinguishment of the former marriage contract, is not without consideration; and, although the second contract may on its face appear to be complete within itself, the rule that prevents a complete and certain contract in writing from being varied by parol evidence, except in cases of fraud, accident, or mistake, does not have application where the additional obligation was for a valid consideration contemporaneously entered upon in writing. The court did not err in overruling the general demurrer to the petition.

Judgment affirmed.

Stephens and Smith, JJ., concur.

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Jenkins, P. J.

1. An existing contract is superseded and discharged whenever the parties subsequently enter upon a valid and inconsistent agreement completely covering the subject-matter embraced by the original contract. American Sewer Pipe Co. v. Mathews, 19 Ga. App. 248 (3) (91 S. E. 284) ; Housekeeper Pub. Co. v. Swift, 97 Fed. 290 (38 C. C. A. 187).

2. Such a -subsequent agreement, amounting to a substitution of the former contract, may be collected from several different contemporaneous writings which when taken together constitute a new and complete agreement. 13 C. J. 304, § 126 (4). Thus, where parties enter into an antenuptial marriage contract whereby the wife, in consideration of marriage, is to receive, at the death of the husband, the sum of $12,000, and a prescribed income from the said sum during the husband’s life, and where prior to the date of the marriage a similar contract is signed whereby the wife is to receive the named sum of $10,000, but, contemporaneously with the execution of the latter agreement, receives from the intended husband a promissory note for $2,000, the second contract and the contemporaneous note can properly be taken as together superseding and discharging the original agreement, although neither of the two latter instruments refers to the other. The note, being- alleged to have been given in part extinguishment of the former marriage contract, is not without consideration; and, although the second contract may on its face appear to be complete within itself, the rule that prevents a complete and certain contract in writing from being varied by parol evidence, except in cases of fraud, accident, or mistake, does not have application where the additional obligation was for a valid consideration contemporaneously entered upon in writing. The court did not err in overruling the general demurrer to the petition.

Judgment affirmed.

Stephens and Smith, JJ., concur.

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Bluebook (online)

103 S.E. 173, 25 Ga. App. 346, 1920 Ga. App. LEXIS 795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hewlett-v-almand-gactapp-1920.

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