Knight v. Knight

28 Ga. 165

• Court: Supreme Court of Georgia
• Decided: March 15, 1859
• Status: Published

Opinion

By the Court.

Benning, J.,

delivering the opinion.

Was the court below right iu overruling the demurrer to the bill ?

The grounds of the demurrer were, that the case made by the bill was a case within the statute of frauds; a case within the rule forbidding the admission of parol evidence to vary a writiug: and a case in which there was a complete remedy at law. Were any of these grounds good ?

As to the first — The agreement, it is true, related in part to land; but it was an agreement nearly fully performed on both sides. The1 life tenant was a very old person. It had been very largely acted on by both parties. This being so, to allow one of the parties to repudiate it, would be a fraud on the other. And when that is so, the case is taken out of the statute of frauds. Gilmore v. Johnson, 14 Ga. R., 683.

2. As to the second ground — The note is expressed to be for “value received.” In what the value consisted is not stated. Therefore, anything of value might, consistently with the note, have been the consideration ; consequently the agreement might, consistently with the note, have been the consideration. It must follow, that parol evidence to show that the agreement was the consideration, could not be evidence to contradict the note. And, according to the bill, which we have to take as true, the agreement was merely the consideration of the note. But for the agreement, no nóte would have been given by the plaintiff; no money would have been received by him. We may say, then, that the agreement was the consideration of the note. The conclusion, therefore, must be that parol evidence to prove the agreement would not be evidence to contradict the note.

Indeed, it is the general rule, that the consideration of written contracts is open to parol evidence. Failure of consideration is every day’s plea, as well to contracts in writing as to contracts not in writing.

As to the third ground — What remedy was the plaintiff entitled to ? Obviously an injunction to prevent the defendant from collecting any more of the note than the annual interest; and an injunction is a writ not grantable by a court of common law. It cannot be true, then, that the remedy at common law was adequate.

It was suggested that the prayer was not sufficient. The prayer was for an injunction of the suit, and for general relief. A special injunction requiring the defendant to abstain from collecting any part of the note but the annual interest, would, we rather think, be grantable under this prayer. At any rate, the prayer is amendable.

In our opinion, then, none of the grounds of the de murrer were sufficient.

Judgment reversed.