King v. Greer

49 Ga. 545

• Court: Supreme Court of Georgia
• Decided: March 15, 1873
• Status: Published

Opinion

Trippe, Judge.

We do not propose to do violence to the principle of law that parol evidence cannot be received to add to or alter a written contract. We do not think this is such a case. Plaintiff in error claimed money on his execution arising from the sale of property of defendant in execution. Other holders of fi. fas. of a younger date against the same defendant, replied to plaintiff’s claim, that his fi. fa. was satisfied. It appeared in proof that plaintiff’s fi. fa. had previously been levied on defendant’s property, from which sprang litigation and a bill enjoining the levy, etc., was filed. In the progress of that case, a consent decree was taken, finding the land subject and directing its sale on a certain day. The sale did not satisfy the fi. fa., and plaintiff claims this fundón the balance due on his j^. fa. On the trial the other contesting creditors proposed to prove that the consideration that induced the consent to the decree was, that it should be in full satisfaction of plaintiff’s debt, or, in other words, that plaintiff agreed that if he were permitted to take the decree, it should be as a payment of his debt. No such condition was expressed in the decree. Plaintiff objected to the admission of the evidence and the Court ruled it in.

If A sued Bona debt which B defended, and the parties agreed that if B withdrew his defense and permitted A to take judgment, A should surrender another claim which he held on B, could not B, in a suit by A against him on the last claim, plead payment or discharge? It would neither be the adding to nor varying a written contract, or the judgment. So if a debtor yield certain property to his creditor, with the power to sell to pay his debt, and it was agreed that it should be a full satisfaction of the claim, would it not be a good payment, and could it not be proven by parol, although the debt is in writing? In this case, the agreement was fully executed. The defendant in execution, who was complainant in the bill, together with his wife and children, consented to the decree, and surrendered the property; the plaintiff in error took the decree, had the property sold and received the proceeds, with the exception of a portion which was to be otherwise appropriated by the terms of the decree. If all this was done under an agreement that the plaintiff’s debt was to be thereby fully discharged, it is but right and proper that on a money rule, which is a quasi equitable proceeding as between rival creditors, the other creditors should be permitted to prove it without being driven to the delay and cost of filing another bill for themselves and the debtor, to have a reformation, correction, review or new trial on the first bill.

The testimony as to the fact of such an agreement having been made was somewhat conflicting; but the whole question was left to the Judge to decide, and we see no reason to say he decided wrong on the facts.

Judgment affirmed.