ON SECOND MOTION EOR REHEARING.
Jenkins, P. J.
Counsel for plaintiff in error file a second motion for rehearing, in which they very earnestly but courteously insist that the court has still failed to draw the proper distinction between eases where the consideration is expressed as a mere recital, and those eases where, as here, it is contended that “the consideration is a necessary term of the contract, which is complete within itself and signed by both parties.” It is contended that “the court overlooked the fact that the failure or lack of consideration for the contract in this case is shown only by a direct contradiction and denial of a positive statement in the contract which the contract itself shows was a vital and necessary term, in that the contract shows that the obligation was for the purchase-price of an automobile and the parol testimony shows that this was not the case.” They further insist that “the court overlooked the fact that its opinion holds that the statement in a retention-of-title contract that property is bought and sold is not a necessary term, but a mere recital, and vitiates every such contract in existence, and puts it in the power of every signer of such a contract to dispute and deny the validity thereof.” They contend that the ruling is in direct conflict with the Georgia authorities, especially Middlebrooks v. Dunlap-Huckabee Auto Co., 44 Ga. App. 543, which was cited in the original decision.
The original syllabus of the court has been elaborated on the rehearing already granted. If we are correct in our conception as to [390] the law governing this case, there is little that we can add to what lias previously been said. It may be due to state, however, that counsel’s strongly-put argument and further consideration of the legal principles involved have led us to change a portion of the language heretofore used. As previously pointed out, so far as what is now sued for is concerned, the- instrument on which the proceeding is grounded is, according to the undisputed evidence, but a mere accommodation paper, given for the purpose of enabling the plaintiff to borrow money for his own benefit on the maker’s credit. That all purported contracts must be supported by a consideration, in order to be valid and enforceable, is a proposition which need be no more than stated. The question here is not whether the contract is thus supported, since the evidence shows that the purported sale was a mere fiction, but whether the defendant had the right to prove such fact, where the instrument itself states that it was given for the purchase-money of an automobile, and is accompanied by a sale agreement signed by both parties, setting up such a sale and the terms thereof. Nothing is better settled than the general rule that the consideration of a contract is ordinarily open to inquiry. Does the instant ease come within any exception which would preclude the defendant from showing that, as between the parties, there was a want of consideration? In our opinion, the fact that the note purports on its face to represent the purchase-price of an automobile, and the further fact that an instrument was contemporaneously executed purporting to set forth such a sale and the terms thereof, do not prevent the promisor as purported purchaser from showing, as he did without dispute, that no such sale was actually made, but that the proceeding was merely a device whereby the promisor, as purported purchaser, might lend his credit to the payee. Of course, as regards a holder in due course, he would be bound; but, as between the parties themselves, there being in fact a fatal lack of consideration, we do not think that mere language setting up such a consideration would preclude him from showing that no consideration in fact existed. As previously stated, the questions here involved were thoroughly gone into in Rheney v. Anderson, 22 Ga. App. 417 (supra). It is needless to repeat at length the discussion there made, but it will be seen that the conclusion there arrived at was that, while the validity of an unconditional promise in writing may be attacked on the ground that it is not [391] supported by a valid consideration, such an inquiry into the consideration can not be used as a pretext to alter or in any way vary the terms or conditions of the contract itself. A number of cases were cited in the Rheney case, supra, in which an effort was made under the guise of inquiring into the consideration, to set up a condition to an unconditional promise. This can not be done, nor can the consideration be inquired into, unless it be expressed by recital only, for the purpose of showing that the true consideration was different from that recited, and that such different but true consideration has failed. The defendant in the instant case could not be heard to deny that he made the promise precisely as made. He has not attempted to do so. But he can be heard to say that the admitted promise was not binding upon him for the reason that it lacked consideration. The case of Hawkins v. Collier, 101 Ga. 145 (28 S. E. 632), cited in the Rheney case, was very similar in nature. There the promisor signed an agreement to pay a certain amount of money for rent for a certain definitely described parcel of land. On a distress-warrant proceeding the court held that it was competent for the maker of the note to plead and prove that the payee did not really own the land for the rent of which the note was given, and that he had no control over the same, and was not entitled to the possession thereof, and had no right to rent it, and never attempted to deliver possession thereof to the maker of the note, and that consequently he had never become the maker’s landlord.
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ON SECOND MOTION EOR REHEARING.
Jenkins, P. J.
Counsel for plaintiff in error file a second motion for rehearing, in which they very earnestly but courteously insist that the court has still failed to draw the proper distinction between eases where the consideration is expressed as a mere recital, and those eases where, as here, it is contended that “the consideration is a necessary term of the contract, which is complete within itself and signed by both parties.” It is contended that “the court overlooked the fact that the failure or lack of consideration for the contract in this case is shown only by a direct contradiction and denial of a positive statement in the contract which the contract itself shows was a vital and necessary term, in that the contract shows that the obligation was for the purchase-price of an automobile and the parol testimony shows that this was not the case.” They further insist that “the court overlooked the fact that its opinion holds that the statement in a retention-of-title contract that property is bought and sold is not a necessary term, but a mere recital, and vitiates every such contract in existence, and puts it in the power of every signer of such a contract to dispute and deny the validity thereof.” They contend that the ruling is in direct conflict with the Georgia authorities, especially Middlebrooks v. Dunlap-Huckabee Auto Co., 44 Ga. App. 543, which was cited in the original decision.
The original syllabus of the court has been elaborated on the rehearing already granted. If we are correct in our conception as to [390] the law governing this case, there is little that we can add to what lias previously been said. It may be due to state, however, that counsel’s strongly-put argument and further consideration of the legal principles involved have led us to change a portion of the language heretofore used. As previously pointed out, so far as what is now sued for is concerned, the- instrument on which the proceeding is grounded is, according to the undisputed evidence, but a mere accommodation paper, given for the purpose of enabling the plaintiff to borrow money for his own benefit on the maker’s credit. That all purported contracts must be supported by a consideration, in order to be valid and enforceable, is a proposition which need be no more than stated. The question here is not whether the contract is thus supported, since the evidence shows that the purported sale was a mere fiction, but whether the defendant had the right to prove such fact, where the instrument itself states that it was given for the purchase-money of an automobile, and is accompanied by a sale agreement signed by both parties, setting up such a sale and the terms thereof. Nothing is better settled than the general rule that the consideration of a contract is ordinarily open to inquiry. Does the instant ease come within any exception which would preclude the defendant from showing that, as between the parties, there was a want of consideration? In our opinion, the fact that the note purports on its face to represent the purchase-price of an automobile, and the further fact that an instrument was contemporaneously executed purporting to set forth such a sale and the terms thereof, do not prevent the promisor as purported purchaser from showing, as he did without dispute, that no such sale was actually made, but that the proceeding was merely a device whereby the promisor, as purported purchaser, might lend his credit to the payee. Of course, as regards a holder in due course, he would be bound; but, as between the parties themselves, there being in fact a fatal lack of consideration, we do not think that mere language setting up such a consideration would preclude him from showing that no consideration in fact existed. As previously stated, the questions here involved were thoroughly gone into in Rheney v. Anderson, 22 Ga. App. 417 (supra). It is needless to repeat at length the discussion there made, but it will be seen that the conclusion there arrived at was that, while the validity of an unconditional promise in writing may be attacked on the ground that it is not [391] supported by a valid consideration, such an inquiry into the consideration can not be used as a pretext to alter or in any way vary the terms or conditions of the contract itself. A number of cases were cited in the Rheney case, supra, in which an effort was made under the guise of inquiring into the consideration, to set up a condition to an unconditional promise. This can not be done, nor can the consideration be inquired into, unless it be expressed by recital only, for the purpose of showing that the true consideration was different from that recited, and that such different but true consideration has failed. The defendant in the instant case could not be heard to deny that he made the promise precisely as made. He has not attempted to do so. But he can be heard to say that the admitted promise was not binding upon him for the reason that it lacked consideration. The case of Hawkins v. Collier, 101 Ga. 145 (28 S. E. 632), cited in the Rheney case, was very similar in nature. There the promisor signed an agreement to pay a certain amount of money for rent for a certain definitely described parcel of land. On a distress-warrant proceeding the court held that it was competent for the maker of the note to plead and prove that the payee did not really own the land for the rent of which the note was given, and that he had no control over the same, and was not entitled to the possession thereof, and had no right to rent it, and never attempted to deliver possession thereof to the maker of the note, and that consequently he had never become the maker’s landlord.
As we understand it, the gist of the plaintiff’s argument is that the expressed consideration in the note sued on can not be inquired into or disputed, even though it be fictitious, for the reason that it constitutes the necessary terms of a valid and complete written agreement, and that, in order to dispute the consideration, the terms and conditions of the instrument would have to be changed, and that this is not allowed. It was recognized in the original syllabus that the consideration can not be inquired into for the purpose of changing the terms and conditions of the instrument. This, as we understand it, is all that is held in Middlebrooks v. Dunlap-Huckabee Auto Co., 44 Ga. App. 543 (supra). As far back as Atkinson v. Lanier, 69 Ga. 460, it was held that, “while the consideration of a written contract may always be the subject of parol evidence, the contract in its terms can not be varied thereby.” In the instant [392] case there is no effort to change the terms of the contract. There is no effort to impose airy sort of condition upon the unconditional promise to pay. There is no effort to substitute a new consideration in lieu of the consideration stated, in order to show that such new and different consideration has failed. The contract is allowed to stand just as it was executed. The promise precisely as made is not assailed. What is done is that the defendant, while admitting the promise, while admitting that the promise was to pay for an automobile, yet altados the promise to pay for the automobile as being void, because no consideration did in fact exist. In Wellmaker v. Wheatley, 123 Ga. 201 (51 S. E. 436), there was an expressed consideration which constituted a part of the terms of the agreement. What the court held was that the consideration could not be inquired into for the purpose of changing one consideration into another and different consideration, thereby imposing new and different obligations. If the plaintiff be correct in its contention that the consideration as expressed in the written instrument constitutes a part of the terms and conditions of the contract itself, then the rule just stated would have application, and it would not be permissible for the defendant to introduce testimony for the purpose of showing a new and different consideration in order to show that such new and true consideration had in fact failed. The rule does not have application in those cases where the consideration is merely recited and does not constitute, a part of the terms and conditions of the contract. In such cases it is entirely proper to show that the consideration thus recited did not constitute the true consideration, and to further show that the true consideration had in fact failed. As we see it, however, neither of these rules gives determination to the instant case, since it is the right of any promisor always to attack the consideration by showing a lack or failure thereof. The fact that in some cases he might not be able to prove a different and new consideration in order to show that such new consideration had failed, does not prevent him from attacking the instrument as being a nudum pactum. In the instant case, the stated consideration is not exempt from attack, if it can be shown that what is expressed as a valuable consideration is in fact but a mere fiction, and that the instrument is in fact without consideration. This is what was held in Hawkins v. Collier, 101 Ga. 145 (supra). This is true for the reason that showing that [393] the contract was without consideration does not change the contract, but simply voids the contract. See, in this connection, Aultman v. Mason, 83 Ga. 212, 219 (9 S. E. 536); Reese v. Strickland, 96 Ga. 784 (22 S. E. 323); Byrd v. Marietta Fertilizer Co., 127 Ga. 30 (supra).
It is true enough that the note and contemporaneous agreement say that they were given for the purchase-price of the ear, but as between the parties themselves mere words are not strong enough, nor can they be made strong enough, to support a nudum pactum. A good consideration, a meritorious consideration, and a valuable consideration are the rocks upon which all contracts rest. Words are but the medium of expression. They can set forth a consideration, but they can not supply it. They give form, but do not furnish substance. In the absence of some real and actual consideration, not even a veritable artillery of words can lay down such a barrage as will prevent one who has received nothing, and who therefore owes nothing, from passing through.
Motion denied.
Stephens and Sutton, JJ., concur.