Holt & Duggan Co. v. Clary

90 S.E. 381, 146 Ga. 46, 1916 Ga. LEXIS 570

• Court: Supreme Court of Georgia
• Decided: October 20, 1916
• Status: Published

Opinion

Beck, J.

The defendant in this ease filed his affidavit of illegality to prevent the enforcement of the mortgage fi. fa. based upon the foreclosure of the mortgage which he had given to secure the purchase-price of the article of personal property which he had bought from the plaintiffs. In the mortgage it was stipulated that “Holt & Duggan Co. [the vendor and'mortgagee] guarantees-above property only as to title.” This stipulation in connection with the other terms of the note and mortgage constitutes a complete contract, so far as relates to the subject of warranty, and could not be varied or added to by parol evidence as to any oral agreement made prior to or at the time of the sale and purchase of the property for which the note was given. Armistead v. Weaver, 140 Ga. 740 (79 S. E. 783); Forsyth Mfg. Co. v. Castlen, 112 Ga. 199 (37 S. E. 485, 81 Am. St. R. 28); Pryor v. Ludden & Bates, 134 Ga. 288 (67 S. E. 654, 28 L. R. A. (N. S.) 267). It would have been a violation of the rule just stated, to allow the defendant to prove the express warranty contained in that part of the contract quoted in the headnote. The demurrer to the affidavit of illegality should have been sustained.

Judgment reversed.

All the Justices concur, except Fvans, P. J., disqualified.