Wynn v. First National Bank

Supreme Court of Georgia

Wynn v. First National Bank

167 S.E. 513, 176 Ga. 218, 1933 Ga. LEXIS 49

Supreme Court of Georgia·Decided January 12, 1933·No. No. 8978·Published·Cited by 10 cases

Opinion

Per Curiam.

1. “A bill of exceptions will not be dismissed because in the

assignment of-error it is stated that the ‘defendant excepted and now excepts,’ etc., where from the whole bill of exceptions it is apparent that the word ‘defendant’ was inadvertently used for ‘plaintiffs.’” Thompson v. Simmons, 139 Ga. 845 (3) (78 S. E. 419). Applying the principle just stated, the motion to dismiss the bill of exceptions is overruled.

2. A party to a contract who can read must read, or show a legal excuse for not doing so. Fraud which would relieve a party who could read must be such as prevents him from reading. Stoddard Mfg. Co. v. Adams, 122 Ga. 802 (50 S. E. 915) ; Walton Guano Co. v. Copelan, 112 [219]*219Ga. 319 (37 S. E. 411, 52 L. R. A. 268) ; Georgia Medicine Co. V. Hyman, 117 Ga. 851 (45 S. E. 238) ; Hawkins v. Adams, 44 Ga. App. 378 (161 S. E. 639) ; Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (2) (56 S. E. 1030) ; Daniel v. Drummond, 44 Ga. App. 357 (161 S. E. 670).

No. 8978. January 12, 1933.

3. “Parol negotiations eventuating in an unambiguous written contract are merged in the writing, and are ineffectual to vary or contradict the writing.” Capps v. Edwards, 130 Ga. 146 (3) (60 S. E. 455).

4. Where it is not alleged in the petition that the plaintiff could not read, and no fraud is shown to have been practiced which excused plaintiff from reading the instrument which she signed, that instrument being a deed of conveyance absolute upon its face, and accompanied with possession of the property, such deed can not be shown by parol evidence to be merely a security deed; nor is the plaintiff entitled to have the deed in question treated as a mortgage or security deed, so as to recover a judgment for the sums which she seeks to recover in this ease. Civil Code (1910), § 3258.

5. It follows that on the facts alleged in the petition the plaintiff is not entitled to the relief sought; and the court did not err in sustaining a general demurrer. Judgment affirmed.

All the Justices concur. I-Iill, J., concurs in the judgment. 8. Holderness and ~W. T. Atkinson, for plaintiff. Hall & Jones, for defendant.

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Per Curiam.

1. “A bill of exceptions will not be dismissed because in the

assignment of-error it is stated that the ‘defendant excepted and now excepts,’ etc., where from the whole bill of exceptions it is apparent that the word ‘defendant’ was inadvertently used for ‘plaintiffs.’” Thompson v. Simmons, 139 Ga. 845 (3) (78 S. E. 419). Applying the principle just stated, the motion to dismiss the bill of exceptions is overruled.

2. A party to a contract who can read must read, or show a legal excuse for not doing so. Fraud which would relieve a party who could read must be such as prevents him from reading. Stoddard Mfg. Co. v. Adams, 122 Ga. 802 (50 S. E. 915) ; Walton Guano Co. v. Copelan, 112 [219]*219Ga. 319 (37 S. E. 411, 52 L. R. A. 268) ; Georgia Medicine Co. V. Hyman, 117 Ga. 851 (45 S. E. 238) ; Hawkins v. Adams, 44 Ga. App. 378 (161 S. E. 639) ; Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (2) (56 S. E. 1030) ; Daniel v. Drummond, 44 Ga. App. 357 (161 S. E. 670).

No. 8978. January 12, 1933.

3. “Parol negotiations eventuating in an unambiguous written contract are merged in the writing, and are ineffectual to vary or contradict the writing.” Capps v. Edwards, 130 Ga. 146 (3) (60 S. E. 455).

4. Where it is not alleged in the petition that the plaintiff could not read, and no fraud is shown to have been practiced which excused plaintiff from reading the instrument which she signed, that instrument being a deed of conveyance absolute upon its face, and accompanied with possession of the property, such deed can not be shown by parol evidence to be merely a security deed; nor is the plaintiff entitled to have the deed in question treated as a mortgage or security deed, so as to recover a judgment for the sums which she seeks to recover in this ease. Civil Code (1910), § 3258.

5. It follows that on the facts alleged in the petition the plaintiff is not entitled to the relief sought; and the court did not err in sustaining a general demurrer. Judgment affirmed.

All the Justices concur. I-Iill, J., concurs in the judgment. 8. Holderness and ~W. T. Atkinson, for plaintiff. Hall & Jones, for defendant.

Wynn v. First National Bank, 167 S.E. 513, 176 Ga. 218, 1933 Ga. LEXIS 49 (Ga. 1933).

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Opinion

1. “A bill of exceptions will not be dismissed because in the

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