Schofield-Burkett Construction Co. v. Rich

85 S.E. 285, 16 Ga. App. 321, 1915 Ga. App. LEXIS 611

• Court: Court of Appeals of Georgia
• Decided: May 10, 1915
• Docket: 5801
• Status: Published

Opinions

Broyles, J.

1. There was no error in allowing the amendments to the defendant’s pleas, or in overruling the demurrers to the pleas as finally amended; the written contract signed contemporaneously with the notes, and afterwards introduced in evidence, not being set out or referred to in the pleadings.

2. A purchaser of an article who has given his promissory notes for the price and signed contemporaneously an unambiguous written contract in regard to the same transaction, and therein accepted a limited warranty and stipulated not to exact anything beyond, can not prove by parol other representations or warranties of the seller, unless upon the ground of fraud. Civil Code, § 4268, par. 1; Tindall v. Harkinson, 19 Ga. 448; Castleberry v. Scandrett, 20 Ga. 247; Collier v. Harkness, 26 Ga. 362 (71 Am. D. 216); Sawyer v. Vories, 44 Ga. 663; Allen v. Gibson, 53 Ga. 600, 601; Mansfield v. Barber, 59 Ga. 854; Haley v. Evans, 60 Ga. 158 (2), 159; Stripling v. Holton, 68 Ga. 821; Stone v. Moore, 75 Ga. 565; Fuller v. Brice, 80 Ga. 395 (1), 397 (6 S. E. 17); Thompson v. Boyce, 84 Ga. 497, 503 (11 S. E. 353); Forsyth Mfg. Co. v. Castlen, 112 Ga. 199 (37 S. E. 485, 81 Am. St. R. 28); Georgia Iron Co. v. Ocean Accident Corp., 133 Ga. 331 (65 S. E. 775); Pryor v. Ludden & Bates, 134 Ga. 288, 292 (67 S. E. 654, 28 L. R. A. (N. S.) 267); Brannen v. Brannen, 135 Ga. 590, 591 (69 S. E. 1079); Sheffield v. International Harvester Corp., 3 Ga. App. 374 (59 S. E. 1113); Heitmann v. Commercial National Bank, 6 Ga. App. 584 (65 S. E. 590). See also John A. Roebling’s Sons Co. v. Southern Power Co., 142 Ga. 472-477 (83 S. E. 138).

3. The evidence failing to show any deceit or fraud on the part of the plaintiff, it was error for the court to admit parol testimony as to verbal contemporaneous promises of the plaintiff which added to and varied the unambiguous written contract. It was also error for the court to charge upon the subject of fraud, there being no evidence to authorize the jury to find that any fraud or deceit had been practiced by thé plaintiff.

4. The construction of a contract which is unambiguous is a question for the court, and not for the jury. Civil Code, § 4265.

5. It has been held that a plea, alleging that a note was renewed or paid by a defendant on the consideration of a verbal promise from the plaintiff (made after the note was executed) to repair defects (known to the defendant) in machinery or other personal property, and that this promise was not kept, and in consequence of the breach thereof the defendant was damaged, is meritorious. Atlanta City Street-Railway Co. v. American Car Co., 103 Ga. 254 (29 S. E. 925); Blount v. Edison General Electric Co., 106 Ga. 197 (32 S. E. 113). While this is true, the ruling does not apply in the instant case, where the alleged verbal promise by the plaintiff to make the machine work satisfactorily, pull up stumps, etc., or to refund the purchase-money, was given contemporaneously with the signing of the notes and with the signing of the unambiguous written contract in which the defendant accepted a limited warranty (as to the quality of the material in the machine for one year), and stipulated not to exact anything beyond; and he will not be allowed to introduce by parol anything to add to, take from, or vary his solemn written contract. The court erred in not excluding all the evidence as to the above-mentioned verbal promises of the plaintiff.

Decided May 10, 1915.

Complaint; from city court of Bainbridge — Judge Spooner. May 8, 1914.

Harrell & Wilson, for plaintiff. W. H. Krause, P. D. Rich, T. S. Hawes, for defendant.

6. The defendant, by his admissions in his answer, admitted a prima facie case in the plaintiff, and assumed the burden of proof. This burden he failed to carry, and the finding of the jury in his favor was not authorized by the legal evidence; and the trial judge erred in overruling the motion for a new trial.

7. There were other errors in the charge of the court and in the admission of evidence; but as, under our rulings as above given, they are not likely to be repeated upon another trial of this case, it is unnecessary to discuss them here. Judgment reversed.

Bussell, C. J., dissents.