Parol contemporaneous evidence shall be generally inadmissible to contradict or vary the terms of a valid written instrument.
(Code 1981, §24-3-1, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)
Law reviews.- For article, "The Parol Evidence Rule in Georgia," see 17 Ga. B.J. 49 (1954). For article discussing the advantages of contract rescission as a remedy for fraud, with respect to the parol evidence rule and the statute of frauds, in light of City Dodge, Inc. v. Gardner, 232 Ga. 766, 208 S.E.2d 794 (1974), see 11 Ga. St. B.J. 172 (1975). For article discussing parol evidence in the law of commercial paper, see 13 Ga. L. Rev. 53 (1978). For article, "Supplementing Written Agreements: Restating the Parol Evidence Rule in Terms of Credibility and Relative Fault," see 34 Emory L.J. 93 (1985).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 3723, former Code 1868, § 3747, former Code 1873, § 3800, former Code 1882, § 3800, former Civil Code 1895, § 5201, former Civil Code 1910, § 5788, former Code 1933, § 38-501, and former O.C.G.A. § 24-6-1 are included in the annotations for this Code section.
Purpose of the rule that the terms of a valid written agreement which is complete and the terms of which are not ambiguous cannot be contradicted, added to, altered, or varied by parol agreements is to establish the finality of written contracts. Stonecypher v. Georgia Power Co., 183 Ga. 498, 189 S.E. 13 (1936) (decided under former Code 1933, § 38-501).
Parol evidence rule is matter of substantive law and no amount of oral testimony contradicting the legal consequence of a written instrument can avail to destroy or weaken that legal consequence. Albany Fed. Sav. & Loan Ass'n v. Henderson, 198 Ga. 116, 31 S.E.2d 20 (1944) (decided under former Code 1933, § 38-501); Almon v. R.H. Macy & Co., 106 Ga. App. 123, 126 S.E.2d 641 (1962);(decided under former Code 1933, § 38-501).
Parol evidence cannot add to, take from, or vary writing itself. Buice Grading & Pipeline, Inc. v. Bales, 187 Ga. App. 263, 370 S.E.2d 26 (1988) (decided under former O.C.G.A. § 24-6-1); Price v. Age, Ltd., 194 Ga. App. 141, 390 S.E.2d 242 (1990);(decided under former O.C.G.A. § 24-6-1).
Parol evidence rule should not be relaxed. Howard & Soule v. Stephens, 52 Ga. 448 (1874) (decided under former Code 1882, § 3800).
Test for admissibility of oral agreement.
- Test to determine whether an oral agreement is one which the law will permit to be plead and proved is whether the oral agreement constitutes a part of the written contract or whether, instead, it is a separate and distinct oral contract which is not inconsistent with the written contract. If the latter, it admits of pleading and proof. S. & S. Bldrs., Inc. v. Equitable Inv. Corp., 219 Ga. 557, 134 S.E.2d 777 (1964) (decided under former Code 1933, § 38-501); Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 240 S.E.2d 572 (1977);(decided under former Code 1933, § 38-501).
Court will not ignore clear language of written contract between the parties to enforce an alleged oral contract in contradiction thereto. Johnson v. Ford Motor Credit Co., 142 Ga. App. 547, 236 S.E.2d 527 (1977) (decided under former Code 1933, § 38-501).
Oral agreement that contradicts written agreement inadmissible.
- Evidence that attorney verbally agreed to keep fees at the low end of the range specified in the attorney's written agreement with plaintiff and to complete the project within two weeks was inadmissible since that evidence contradicted the parties written agreement. Schluter v. Perrie, Buker, Stagg & Jones, 230 Ga. App. 776, 498 S.E.2d 543 (1998) (decided under former O.C.G.A. § 24-6-1).
All previous negotiations are merged in the subsequent written contract. Freeman v. Bass, 34 Ga. 355, 89 Am. Dec. 255 (1866) (decided under former Code 1863, § 3723); Roberts v. Investors' Sav. Co., 154 Ga. 45, 113 S.E. 398 (1922); Wynn v. First Nat'l Bank, 176 Ga. 218, 167 S.E. 513 (1933) (decided under former Civil Code 1910, § 5788); Allison v. United Small-Loan Corp., 54 Ga. App. 820, 189 S.E. 263 (1936); Thompson v. Riggs, 193 Ga. 632, 19 S.E.2d 299 (1942) (decided under former Civil Code 1910, § 5788); Heisley v. Allied Am. Mut. Fire Ins. Co., 71 Ga. App. 107, 30 S.E.2d 285 (1944); Albany Fed. Sav. & Loan Ass'n v. Henderson, 198 Ga. 116, 31 S.E.2d 20 (1944) (decided under former Code 1933, § 38-501); Thompson v. Arrington, 209 Ga. 343, 72 S.E.2d 293 (1952); Simmons v. Wooten, 241 Ga. 518, 246 S.E.2d 639 (1978) (decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501).
Evidence admitted without objection.
- Parol evidence as to the terms of the agreement, and as to statements of the defendant made previously to the execution of the paper was ineffectual to vary the terms of the written instrument, even though admitted without objection. Cleghorn v. Shields, 165 Ga. 362, 141 S.E. 55 (1927) (decided under former Civil Code 1910, § 5788).
Determination of timeliness of objection to parol evidence was unnecessary, since parol evidence, by its nature, was incompetent and without probative value to alter the terms or conditions of a written contract. Lyon v. Patterson, 138 Ga. App. 816, 227 S.E.2d 423 (1976) (decided under former Code 1933, § 38-501).
Uncertainty in contract.
- There can be no admission of parol evidence unless and until an application of the pertinent rules of interpretation leaves it really uncertain which of two or more possible meanings represent the true intention of the parties. McCann v. Glynn Lumber Co., 199 Ga. 669, 34 S.E.2d 839 (1945) (decided under former Code 1933, § 38-501).
Violation of parol agreement not fraud.
- Making and violating a contemporaneous parol agreement if inconsistent with the writing would not be such fraud as would permit a varying of the written instrument, even if plead as fraud, no sufficient reason appearing why the agreement was not incorporated in the writing. Bowen v. Swift & Co., 52 Ga. App. 793, 184 S.E. 625 (1936) (decided under former Code 1933, § 38-501).
Invoices.
- Invoice for goods delivered on open account was not "a valid written instrument" as that term was used in former O.C.G.A. § 24-6-1. Wheeler v. IDN-Armstrong's, Inc., 288 Ga. App. 253, 653 S.E.2d 835 (2007) (decided under former O.C.G.A. § 24-6-1).
Jury question.
- It is for the jury to decide whether an independent collateral oral agreement was made and, if so, whether the oral agreement was part of the inducement to the written agreement. Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 240 S.E.2d 572 (1977) (decided under former Code 1933, § 38-501).
Attempt to invoke rule on appeal.
- When a party who was entitled to the benefit of the rule prohibiting the admission of parol evidence to vary or contradict a writing waived the benefit thereof by allowing such evidence to be received without objection and without any effort to have the evidence stricken and disregarded by the trial judge or the jury, the party cannot, after the trial terminated and the case had been decided against the party, invoke the parol evidence rule in order to obtain a reversal of such verdict and judgment in the appellate court. Southern Envelope Co. v. Adamson Printing Co., 51 Ga. App. 475, 180 S.E. 770 (1935) (decided under former Code 1933, § 38-501); Commercial Credit Co. v. Lewis, 59 Ga. App. 144, 200 S.E. 566 (1938);(decided under former Code 1933, § 38-501).
Cited in Thomas v. Emory Clinic, Inc., 321 Ga. App. 457, 739 S.E.2d 138 (2013); Bates v. State, 322 Ga. App. 319, 744 S.E.2d 841 (2013), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018); Wilson v. State, 295 Ga. 84, 757 S.E.2d 825 (2014); Crop Production Services, Inc. v. Moye, 345 Ga. App. 228, 812 S.E.2d 565 (2018).
Evidence Inadmissible
1. In General
Prior and contemporaneous statements or agreements cannot be shown to vary, contradict, or change the terms of a valid written contract purporting on the contract's face to contain all the terms of an agreement between the parties. Campbell v. Alkahest Lyceum Sys., 10 Ga. App. 839, 74 S.E. 443 (1912) (decided under former Civil Code 1910, § 5788); Roberts v. Investors' Sav. Co., 154 Ga. 45, 113 S.E. 398 (1922); Eaves v. Georgian Co., 47 Ga. App. 37, 169 S.E. 519 (1933) (decided under former Civil Code 1910, § 5788); Hardin v. Atlanta Gas Light Co., 71 Ga. App. 63, 30 S.E.2d 121 (1944); Owensby v. Byrd, 75 Ga. App. 729, 44 S.E.2d 452 (1947) (decided under former Civil Code 1910, § 5788); Cone Mills Corp. v. A.G. Estes, Inc., 399 F. Supp. 938 (N.D. Ga. 1975); Lewis v. Citizens & S. Nat'l Bank, 139 Ga. App. 855, 229 S.E.2d 765 (1976) (decided under former Code 1933, § 38-501); Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 240 S.E.2d 572 (1977);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501).
When the contract was complete on the contract's face and the evidence offered to explain the ambiguity contradicts the terms of the written instrument, parol evidence should not be admitted. American Cyanamid Co. v. Ring, 248 Ga. 673, 286 S.E.2d 1 (1982) (decided under former O.C.G.A. § 24-6-1).
In absence of fraud, accident, or mistake, parol evidence is not admissible to vary an unambiguous written agreement. Freeman v. Bass, 34 Ga. 355, 89 Am. Dec. 255 (1866) (decided under former Code 1863, § 3723); Roberts v. Investors' Sav. Co., 154 Ga. 45, 113 S.E. 398 (1922); Holloway v. Brown, 171 Ga. 481, 155 S.E. 917 (1930) (decided under former Civil Code 1910, § 5788); Long v. Sullivan, 52 Ga. App. 318, 183 S.E. 71 (1935); Albany Fed. Sav. & Loan Ass'n v. Henderson, 198 Ga. 116, 31 S.E.2d 20 (1944) (decided under former Civil Code 1910, § 5788); Gilleland v. Welch, 199 Ga. 341, 34 S.E.2d 517 (1945); McCann v. Glynn Lumber Co., 199 Ga. 669, 34 S.E.2d 839 (1945) (decided under former Code 1933, § 38-501); Smith v. Standard Oil Co., 227 Ga. 268, 180 S.E.2d 691 (1971); Vulcan Materials Co. v. Douglas, 131 Ga. App. 21, 205 S.E.2d 84 (1974) (decided under former Code 1933, § 38-501); Wilson v. Sheppard, 136 Ga. App. 475, 221 S.E.2d 671 (1975); C.P.D. Chem. Co. v. National Car Rental Sys., 148 Ga. App. 756, 252 S.E.2d 665 (1979) (decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501).
Parol evidence inadmissible even to establish fraud.
- Parol evidence was not admissible to vary the terms of a binding written agreement, even to establish fraud. Cosby v. A.M. Smyre Mfg. Co., 158 Ga. App. 587, 281 S.E.2d 332 (1981) (decided under former Code 1933, § 38-501).
Oral representations made as inducements to the contract are inadmissible to add to, take from, or vary a written contract. Pepsico Truck Rental, Inc. v. Eastern Foods, Inc., 145 Ga. App. 410, 243 S.E.2d 662 (1978) (decided under former Code 1933, § 38-501).
Different consideration.
- As a general rule, the consideration of a contract is open to inquiry as between the original parties, but if the consideration be so stated in the contract as to make it one of the contract's terms or conditions, as when the consideration consists of mutual promises expressed in the contract, a different consideration, whether variant or additional, cannot be shown by parol. Lynchburg Shoe Co. v. Daniel, 23 Ga. App. 186, 98 S.E. 107 (1919) (decided under former Civil Code 1910, § 5788); Georgia Cas. Co. v. Dixie Trust & Sec. Co., 23 Ga. App. 447, 98 S.E. 414 (1919); Ramsey-Fender Motor Co. v. Chapman, 46 Ga. App. 385, 168 S.E. 92 (1932) (decided under former Civil Code 1910, § 5788); Phillips v. Phillips, 46 Ga. App. 838, 169 S.E. 537 (1933);(decided under former Civil Code 1910, § 5788);(decided under former Civil Code 1910, § 5788).
Party cannot engraft new condition under guise of inquiring into consideration.
- Although it was permissible to inquire into consideration when the principles of justice require it, one of the parties to a contract cannot, under the guise of inquiring into consideration, engraft upon the contract a new condition which imposed an additional affirmative obligation upon the other party. Hanover Ins. Co. v. Nelson Conveyor & Mach. Co., 159 Ga. App. 13, 282 S.E.2d 670 (1981) (decided under former Code 1933, § 38-501).
Inquiry into consideration to vary terms of contract.
- When in some instances parol evidence that the real consideration of a contract was different from the one actually recited in the instrument was admissible for the purpose of proving that the true consideration has failed, it was never allowable, under the guise of inquiring into the consideration, to vary or contradict by parol the substance and meaning of the written terms of the contract itself. Lynchburg Shoe Co. v. Daniel, 23 Ga. App. 186, 98 S.E. 107 (1919) (decided under former Civil Code 1910, § 5788); Middlebrooks v. Dunlap-Huckabee Auto Co., 44 Ga. App. 543, 162 S.E. 153 (1932); Phillips v. Phillips, 46 Ga. App. 838, 169 S.E. 537 (1933) (decided under former Civil Code 1910, § 5788); Tyre v. Price, 52 Ga. App. 526, 183 S.E. 843 (1936); Redfearn v. Citizens & S. Nat'l Bank, 122 Ga. App. 282, 176 S.E.2d 627 (1970) (decided under former Civil Code 1910, § 5788); Zorn v. Robertson, 237 Ga. 395, 228 S.E.2d 804 (1976);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501).
Proof of different contract.
- Entirely different contract from that evidenced by a writing cannot be pled or proved by parol as a substitute for that embodied in such writing. Branan v. Warfield & Lee, 3 Ga. App. 586, 60 S.E. 325 (1908) (decided under former Civil Code 1895, § 5201).
2. Notes
Admission to vary promissory note.
- In absence of fraud, accident, or mistake, parol evidence is not admissible to vary or contradict express terms of a promissory note. Tyson v. Henson, 159 Ga. App. 684, 285 S.E.2d 27 (1981) (decided under former O.C.G.A. § 24-6-1).
With respect to an unambiguous promissory note, in the absence of fraud, accident, or mistake, parol evidence cannot be considered to alter or vary the terms of a promissory note. Citizens & S. Trust Co. v. Johnson, 201 Ga. App. 464, 411 S.E.2d 543 (1991) (decided under former O.C.G.A. § 24-6-1).
Showing note to be conditional.
- In an action upon an unconditional promissory note, evidence of a contemporaneous parol agreement that the note was not to be paid except upon the happening of a certain event was inadmissible in the absence of evidence tending to show that the agreement was omitted from the note by accident, fraud, or mistake. Probasco v. Shaw, 144 Ga. 416, 87 S.E. 466 (1915) (decided under former Civil Code 1910, § 5788); Cairo Banking Co. v. Hall, 42 Ga. App. 785, 157 S.E. 346 (1931); Jewell v. Norrell, 66 Ga. App. 11, 16 S.E.2d 797 (1941) (decided under former Civil Code 1910, § 5788); Mooney v. Boyd, 86 Ga. App. 369, 71 S.E.2d 685 (1952); Knight v. William Summerlin Co., 119 Ga. App. 575, 168 S.E.2d 179 (1969) (decided under former Code 1933, § 38-501); Smith v. Standard Oil Co., 227 Ga. 268, 180 S.E.2d 691 (1971); First Nat'l Bank v. Harrison, 408 F. Supp. 137 (N.D. Ga. 1975) (decided under former Code 1933, § 38-501); 529 F.2d 1350 (5th Cir. 1976); Hyman v. Horwitz, 148 Ga. App. 647, 252 S.E.2d 74 (1978) (decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);aff'd,(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501).
Showing a want or failure of consideration.
- When the consideration underlying a note was at issue, the maker of the note had the right to show by parol a want or failure of consideration. Beasley v. Paul, 223 Ga. App. 706, 478 S.E.2d 899 (1996) (decided under former O.C.G.A. § 24-6-1).
Variance in time of payment.
- Parol evidence was inadmissible to vary the terms of payment or the date of the maturity of a promissory note, or to engraft upon the note a provision for an extension of time. Crooker v. Hamilton, 3 Ga. App. 190, 59 S.E. 722 (1907) (decided under former Civil Code 1895, § 5201); Wilder v. Federal Land Bank, 176 Ga. 813, 169 S.E. 13 (1933);(decided under former Civil Code 1910, § 5788).
Showing that note would not be enforced.
- An unconditional promise to pay could not be defeated by proof of a contemporaneous oral agreement that it would never be enforced. Pulliam v. Merchants & Miners State Bank, 33 Ga. App. 68, 125 S.E. 509 (1924) (decided under former Civil Code 1910, § 5788); Cohan v. Flanders, 315 F. Supp. 1046 (S.D. Ga. 1970);(decided under former Code 1933, § 38-501).
Note not to be paid in money.
- Note in which it was stipulated that a certain sum would be paid meant that this sum will be paid in money, and the maker would not be heard to plead or prove that there was a parol agreement by which the note was to be satisfied with something else than money. Kerr v. Holder, 13 Ga. App. 9, 78 S.E. 682 (1913) (decided under former Civil Code 1910, § 5788); Cole v. Bank of Bowersville, 31 Ga. App. 435, 120 S.E. 790 (1923);(decided under former Civil Code 1910, § 5788).
Express warranty.
- When a promissory note was given for purchase money, which was unambiguous and unconditional, and contained no warranty of soundness, no express warranty could be added to the note by parol. Fleming v. Satterfield, 4 Ga. App. 351, 61 S.E. 518 (1908) (decided under former Civil Code 1895, § 5201).
Additional warranty.
- Purchaser of an article, who accepted a note for the price of the article, and therein gave a limited warranty, and stipulated not to exact anything beyond, would not be allowed to prove by parol another representation or warranty of the seller, unless upon the ground of fraud. Commercial Credit Co. v. Lewis, 59 Ga. App. 144, 200 S.E. 566 (1938) (decided under former Code 1933, § 38-501).
Obligation conditioned on additional security.
- "Parol contemporaneous evidence was inadmissible generally to contradict or vary the terms of a valid written instrument," thus, when an unconditional promissory note was signed by two persons, while it was permissible for one of them to show that one was a mere surety, it was not permissible to alter the unconditional character of the obligation by setting up a prior or contemporaneous parol agreement to the effect that the obligation was conditional upon the payees taking a mortgage upon personalty from the principal debtor as additional security. Bowen v. Mobley, 40 Ga. App. 833, 151 S.E. 667 (1930) (decided under former Civil Code 1910, § 5788).
Claim only in rem.
- In a suit on a promissory note secured by a deed to land, it was not permissible for the maker to set up by way of plea and answer that by executing the two instruments together the payee agreed to look solely to the land for repayment of the debt due, and the maker of the note was not to be under any personal obligation, and no personal judgment could be procured against the maker, but only a judgment in rem against the property could be had for such an interpretation would be to vary by parol the plain terms of a written instrument by which the maker agreed to pay a stated sum on a certain day. Skeffington v. Rowland, 52 Ga. App. 619, 184 S.E. 330 (1936) (decided under former Code 1933, § 38-501).
Existence of prior cause of action.
- In a suit by a payee against the maker of a promissory note reciting that the note was given "for value received," a contemporaneous parol agreement cannot be engrafted thereon by the defendant by testimony to the effect that while the defendant, at the time of executing the note, actually received from the plaintiff the principal sum thereof, yet the defendant had a prior cause of action against the plaintiff and the note was to be set up against the demand of the defendant against the plaintiff in this case, and so understood at the time of the execution and delivery of the note. Dunson & Bros. Co. v. Smith Seed Co., 26 Ga. App. 585, 106 S.E. 914 (1921) (decided under former Civil Code 1910, § 5788).
Memorandum written at bottom of note.
- Parol evidence was inadmissible to vary or contradict an unambiguous contract in writing so as to include a memorandum written upon the bottom of one note showing the note to be collateral, and this memorandum cannot by parol be included in (nor can this stipulation in itself include) another note of a prior date when in such prior note no such words appear. Buffington v. Bank of College Park, 157 Ga. 570, 122 S.E. 50 (1924) (decided under former Civil Code 1910, § 5788).
3. Real Estate Transactions
Additional conditions.
- When expressed only by way of recital, parol evidence was admissible to show that the true consideration of the deed was in fact different from the one stated merely by way of recital. However, one of the parties to a deed cannot, under the guise of inquiring into the deed's consideration, engraft upon the instrument a new condition or covenant which imposed an additional affirmative obligation upon the other party. Awtrey v. Awtrey, 225 Ga. 666, 171 S.E.2d 126 (1969) (decided under former Code 1933, § 38-501).
Answer at variance with deed.
- Allegations of the defendant's answer, setting up an understanding at variance with the terms of the deed executed by the plaintiff to the defendant, should have been stricken. Groover v. Simmons, 152 Ga. 423, 110 S.E. 179 (1921) (decided under former Civil Code 1910, § 5788).
House not included in deed.
- When there was a conveyance of land by deed, containing no reservations as to the buildings, a parol understanding that the vendor retains the ownership of the houses, with the right to enter and remove the houses, was certainly inconsistent with the deed and ought to be excluded from evidence. Simpson v. Tate, 226 Ga. 558, 176 S.E.2d 62 (1970) (decided under former Code 1933, § 38-501).
Obligation to sell adjoining tract.
- When one of the parties to a contract involving a purchase and sale of land executed and delivered to the other a deed conveying a described tract of land for a named sum of money, a contemporaneous oral agreement obligating the grantee in the deed to purchase, at the option of the grantor and during the grantor's lifetime, an adjoining tract of land for an additional sum of money will not be enforced if it appears that the deed and the oral agreement constitute parts of the same contract, and the terms of the oral agreement add to and vary those of the written instrument. Stonecypher v. Georgia Power Co., 183 Ga. 498, 189 S.E. 13 (1936) (decided under former Code 1933, § 38-501).
Showing deed to be mortgage.- Father, by a deed absolute, conveyed land to his son, who mortgaged the land for a large sum. Thereafter, with the consent of his father, he sold and assigned in writing the equity of redemption. Under the law, the father could not show by parol a subsequent rescission of the transfer, and that the original deed from himself to his son was intended only as a mortgage, and thereby establish a right in himself to redeem the land. New England Mtg. Sec. Co. v. Tarver, 60 F. 660 (5th Cir. 1894) (decided under former Code 1882, § 3800).
Failure to make improvements.
- In a suit based on a written contract given for the purchase money of described cemetery lots, the court did not err in sustaining demurrer to defense asserting failure of plaintiff to make certain improvements in the cemetery which prior to or contemporaneously with the execution of the contract it had verbally agreed to make. Slaten v. College Park Cem. Co., 185 Ga. 27, 193 S.E. 872 (1937) (decided under former Code 1933, § 38-501).
Administrator denying sale at auction.
- An administrator cannot dispute the truth of a solemn recital contained in a deed that the property was exposed for sale, that the highest bid was a stated sum, and that the administrator held the property therefor. The administrator may deny receipt of the proceeds, but the administrator cannot deny the sale at public auction for a stated sum. Gammage v. Perry, 29 Ga. App. 427, 116 S.E. 126 (1923) (decided under former Civil Code 1910, § 5788).
Real estate bond.
- Rule that negotiations in parol, occurring prior to or contemporaneously with the execution of a written contract, are considered as merged therein, and evidence as to parol terms which vary or contradict the terms of the written instrument should be excluded is ordinarily applied in a suit on the contract itself, but it also applies in suit against surety on real estate bond, as the alleged default under the bond sued on was in respect to the relation between the parties as fixed and governed by the real estate sales contract, especially in respect to the broker's right to commissions under the contract of sale. Pfeffer v. General Cas. Co. of Am., 87 Ga. App. 173, 73 S.E.2d 234 (1952) (decided under former Code 1933, § 38-501).
Real estate entire agreement clause.
- Provision in parties' contracts that there would be no verbal agreements of any kind between the parties was absolute, and as such, the provision barred the enforcement of a prior verbal agreement that, in fulfillment of its written contractual obligation to convey "lakefront" lots to the plaintiffs, contractor would provide plaintiffs with a permanent easement ensuring their littoral rights. Great Am. Bldrs., Inc. v. Howard, 207 Ga. App. 236, 427 S.E.2d 588 (1993) (decided under former O.C.G.A. § 24-6-1).
Conveyance of right of way.
- Written contract of conveyance of a right of way to a railroad company, duly executed and delivered by an owner of land, cannot be varied by oral testimony to the effect that the owner executed and delivered the contract upon agreement by the agent of the railroad company that the company would so construct the railroad as not to interfere with use of this land, on either side of the right of way, for pasturage purposes. Poole v. Elberton & E. Ry., 19 Ga. App. 631, 91 S.E. 1052 (1917) (decided under former Civil Code 1910, § 5788).
4. Other Agreements
Specific performance.
- Parol evidence rule is applicable in a suit for specific performance to deny another parol proof of an antecedent, inconsistent parol agreement. Thompson v. Arrington, 209 Ga. 343, 72 S.E.2d 293 (1952) (decided under former Code 1933, § 38-501).
Exclusion of specific performance in land purchase contract.
- When there is no language excluding specific performance as a remedy in a land purchase contract, the contract being unambiguous on this point, proffered evidence to the contrary, which purports to show that the parties intended liquidated damages to be the sole remedy, violates the parol evidence rule and is properly disregarded by the trial judge. Laseter v. Brown, 251 Ga. 179, 304 S.E.2d 72 (1983) (decided under former O.C.G.A. § 24-6-1).
Merger of prior negotiations.
- Contract of sale merges prior negotiations and all oral understandings and the court cannot rewrite the agreement to suit one of the parties. Worthington Pump & Mach. Corp. v. Briarcliff, 67 Ga. App. 71, 19 S.E.2d 574 (1942) (decided under former Code 1933, § 38-501); R.C. Craig, Ltd. v. Ships of Sea, Inc., 401 F. Supp. 1051 (S.D. Ga. 1975);(decided under former Code 1933, § 38-501).
Showing sale to be conditional.
- When a special agent makes a contract of sale in writing, evidence of prior conversations is inadmissible for the purpose of showing that the sale, on the sale's face absolute was in fact conditional. Bass Dry Goods Co. v. Granite City Mfg. Co., 119 Ga. 124, 45 S.E. 980 (1903) (decided under former Civil Code 1895, § 5201).
Oral understanding concerning contractual phrase.
- When a timber release contains a general descriptive phrase, the meaning of which was presumably well known to both the contracting parties, any attempt to prove that at the time of the execution of the contract the parties had an oral understanding as to the meaning of such phrase would clearly violate the statute of frauds, as well as the parol evidence rule. Dorsey v. Clements, 202 Ga. 820, 44 S.E.2d 783 (1947) (decided under former Code 1933, § 38-501).
Material contractual term.
- Statement in a complete conditional sales contract that one of the parties "has this day purchased" from the other party certain described personal property, for which one agrees to pay a stated amount of money, is a material contractual term and not a mere recital of the consideration of the contract, and may not be contradicted by parol evidence. Wade v. Ballard, 69 Ga. App. 669, 26 S.E.2d 542 (1943) (decided under former Code 1933, § 38-501).
Employment contract.
- Parol "lifetime" employment contract between the parties upon which the plaintiff relied, even if certain and definite enough to be enforceable, is superseded by the inconsistent, valid, complete, unambiguous, written employment contracts covering the same subject matter and providing for termination of employment by written notice. Vulcan Materials Co. v. Douglas, 131 Ga. App. 21, 205 S.E.2d 84 (1974) (decided under former Code 1933, § 38-501).
Sales contract.
- Parol evidence was inadmissible to establish that a seller breached a written contract for the sale of certain carpet-making technology because such evidence would contradict the express disclaimers of the parties' written contract. Textile Rubber & Chem. Co. v. Thermo-Flex Techs., Inc., 301 Ga. App. 491, 687 S.E.2d 919 (2009) (decided under former O.C.G.A. § 24-6-1).
Endorser.
- When the contract was not one by which the plaintiff was merely secured against loss which might result from the plaintiff becoming an endorser for the defendant, any testimony which sought to show that such was the understanding of the parties at the time the contract was entered into was inadmissible since the testimony sought to vary the express terms of the written contract by proof of a contemporaneous parol agreement. Macon Baseball Ass'n v. Pennington, 45 Ga. App. 611, 166 S.E. 35 (1932) (decided under former Civil Code 1910, § 5788).
Guarantor.
- After parties sign a bond as guarantors, the parties cannot set up, by way of defense to a suit thereon, that the instrument was executed by reason of a contemporaneous parol understanding with the principal debtor that they were not to be bound, and for a purpose wholly at variance with the instrument's plain tenor and import, as this would in effect be merely adding to and varying the terms of a written contract by parol evidence. Christopher v. Georgian Co., 22 Ga. App. 707, 97 S.E. 97 (1918) (decided under former Civil Code 1910, § 5788).
Replevy bond.
- When a defendant, on whose property a distress warrant was levied, gave a replevy bond for condemnation money, the security could not defend on the ground that the defendant signed on condition that the bond was only a forthcoming bond. Daniels v. Smith, 144 Ga. 561, 87 S.E. 774 (1916) (decided under former Civil Code 1910, § 5788).
Partnership agreement to dissolve.
- When one partner buys out another's interest, and assumes all the liabilities of the firm, and the terms of sale are in writing, parol evidence is not admissible to show that the purchaser agreed to pay an account of the vendor for board, though a memorandum of that account was on the partnership books and the board was due to a third member of the partnership. Delaney v. Anderson, 54 Ga. 586 (1875) (decided under former Code 1873, § 3800).
Prior indebtedness.
- In the absence of fraud, accident, or mistake, a writing signed by the parties and treated by the parties as an account stated would be presumed to contain or represent the entire agreement between the parties with reference to the indebtedness then existing between the parties by reason of contract of employment in question, and it was error for the court to admit testimony tending to contradict or vary the terms of the account stated. Bullard v. Western Waterproofing Co., 63 Ga. App. 547, 11 S.E.2d 713 (1940) (decided under former Code 1933, § 38-501).
Present transfer or discharge.
- Parol evidence rule forbids any attempt to prove that the promises stated in a writing do not accurately represent the agreement of the parties; and words, not merely reciting that a transfer or discharge had been made as consideration as an existing fact, but purporting to make a present transfer or present discharge, have also been held contractual in their nature and within the rule. Wade v. Ballard, 69 Ga. App. 669, 26 S.E.2d 542 (1943) (decided under former Code 1933, § 38-501).
Understandings between spouses not incorporated in divorce decree.
- Negotiations and oral agreements between husband and wife, preceding divorce, as to alimony or child support, are, by presumption of law, merged in the final judgment in the divorce suit. Understandings between the husband and wife which are not incorporated into the divorce decree are not binding. Cabaniss v. Cabaniss, 251 Ga. 177, 304 S.E.2d 65 (1983) (decided under former O.C.G.A. § 24-6-1).
E-mail was inadmissible hearsay of disqualification in unemployment benefits.
- Decision denying unemployment benefits to a discharged claimant under O.C.G.A. § 34-8-194 was reversed on appeal because the only evidence of the alleged violation of the employer's policy came by way of a patient's e-mail, which was inadmissible hearsay since the patient did not testify at the hearing. Robinson v. Butler, 319 Ga. App. 633, 737 S.E.2d 731 (2013) (decided under former O.C.G.A. § 24-6-1).
Evidence Admissible
1. In General
When writing incomplete.
- Before parol evidence can be received to show a collateral agreement, it must appear, either from the contract itself or from the attendant circumstances, that the contract is incomplete, and that what is sought to be shown as a collateral agreement does not in any way conflict with or contradict what is contained in the writing. Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 37 S.E. 485, 81 Am. St. R. 28 (1900) (decided under former Civil Code 1895, § 5201); McCommons v. Williams, 131 Ga. 313, 62 S.E. 230 (1908); Napier v. Strong, 19 Ga. App. 401, 91 S.E. 579 (decided under former Civil Code 1895, § 5201); 19 Ga. App. 828, 92 S.E. 558 (1917); Roberts v. Investors' Sav. Co., 154 Ga. 45, 113 S.E. 398 (1922), cert. denied, Bowen v. Swift & Co., 52 Ga. App. 793, 184 S.E. 625 (1936) (decided under former Civil Code 1910, § 5788); Shubert v. Speir, 201 Ga. 20, 38 S.E.2d 835 (1946); Preferred Risk Mut. Ins. Co. v. Jones, 233 Ga. 423, 211 S.E.2d 720 (1975) (decided under former Civil Code 1910, § 5788);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501).
If the writing appears on the writing's face to be an incomplete contract and if the parol evidence offered is consistent with and not contradictory of the terms of the written instrument, then the parol evidence is admissible to complete the agreement between the parties. Thomas v. Clark, 178 Ga. App. 823, 344 S.E.2d 754 (1986) (decided under former O.C.G.A. § 24-6-1).
Invoices as valid written instrument.
- On an action on an open account, the trial court did not violate the parol evidence rule by admitting evidence that explained a "paid" notation on invoices. An invoice for goods delivered on open account was not "a valid written instrument" as that term was used in former O.C.G.A. § 24-6-1 (see now O.C.G.A. § 24-3-1); furthermore, former O.C.G.A. § 24-6-9 (see now O.C.G.A. § 24-3-9) specifically provided that receipts for money were always only prima facie evidence of payment and could be denied or explained by parol. Wheeler v. IDN-Armstrong's, Inc., 288 Ga. App. 253, 653 S.E.2d 835 (2007) (decided under former O.C.G.A. § 24-6-1).
Construction of contract or explanation of ambiguities.
- Parol evidence may be used to explain ambiguities, or aid on the construction of a contract, although it is clearly inadmissible to vary the terms of the written instrument. State Farm Fire & Cas. Co. v. Fordham, 148 Ga. App. 48, 250 S.E.2d 843 (1978) (decided under former Code 1933, § 38-501); Kellos v. Parker-Sharpe, Inc., 245 Ga. 130, 263 S.E.2d 138 (1980);(decided under former Code 1933, § 38-501).
Conflicting documents should be read consistently if possible.
- Courts may not use extrinsic evidence to vary the terms of or otherwise render ambiguous a written contract. However, when two releases both concern the allocation of liability between the parties and were executed on the same day, the court should read the releases together and consider the releases as a single contract in determining whether an ambiguity exists. But if one release violates public policy, the court may not consider extrinsic evidence altering or contradicting the unambiguous language of the valid release. Watson v. Union Camp Corp., 861 F. Supp. 1086 (S.D. Ga. 1994) (decided under former O.C.G.A. § 24-6-1).
Existence of fraud.
- Parol evidence is admissible to show that what appears to be a valid written contract is void because the complaining party was induced to execute the contract by the fraud of the other. Johnson v. Sherrer, 197 Ga. 392, 29 S.E.2d 581 (1944) (decided under former Code 1933, § 38-501); Hinson v. Hinson, 221 Ga. 291, 144 S.E.2d 381 (1965); Brown v. Techdata Corp., 238 Ga. 622, 234 S.E.2d 787 (1977) (decided under former Code 1933, § 38-501);(decided under former Code 1933, § 38-501).
Contracts procured by fraud.
- Rule that parol agreements shall not be received to change or add to terms of written contract does not apply when alleged contract was procured by fraud, and stipulation in contract that provisions thereof constitute sole and entire agreement between parties and that no modification thereof shall be binding on either party unless in writing and signed by seller can have no bearing in a case where fraud to induce the contract is at issue. Spires v. Relco, Inc., 165 Ga. App. 4, 299 S.E.2d 58 (1983) (decided under former O.C.G.A. § 24-6-1).
In a dispute over installment contract to purchase land, evidence of alleged oral agreement between the parties, which the buyer partially performed and the seller accepted the benefits of, was not violative of the parol evidence rule and helped to prove the existence of the oral agreement as the buyer alleged. Hernandez v. Carnes, 290 Ga. App. 730, 659 S.E.2d 925 (2008) (decided under former O.C.G.A. § 24-6-1).
Rebuttal of fraud.
- Parol evidence rule has no application when the defendant introduces testimony for the purpose of rebutting one of the elements of fraud, not for altering the instrument. Friendly Fin. Co. v. Stover, 109 Ga. App. 21, 134 S.E.2d 837 (1964) (decided under former Code 1933, § 38-501).
Lack of valid agreement.
- Parol evidence may be used to show no valid agreement ever existed. Citizens & S. Nat'l Bank v. Williams, 147 Ga. App. 205, 249 S.E.2d 289 (1978) (decided under former Code 1933, § 38-501).
Lack of consideration.
- While it is never allowable, under the guise of inquiring into the consideration of a valid written contract, to vary or contradict the terms or conditions of the instrument, it is permissible to show by parol evidence which does not vary or contradict the terms and conditions of the writing that it was never a contract for want of consideration. Miller v. Whitesburg Banking Co., 58 Ga. App. 84, 197 S.E. 906 (1938) (decided under former Code 1933, § 38-501).
Oral contract as inducement for written contract.
- Collateral oral agreement, not inconsistent with a written contract, is not necessarily merged into the written contract, and one contract may be the consideration for another contract and may induce the execution of the other contract; such independent oral contract may be proved and enforced. Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 240 S.E.2d 572 (1977) (decided under former Code 1933, § 38-501).
Verbal agreement independent of written contract.
- When a verbal agreement is an independent and complete contract within itself and forms no part of the written contract, it does not come within the operation of the parol evidence rule. Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 240 S.E.2d 572 (1977) (decided under former Code 1933, § 38-501).
Subsequent agreement.
- Rule is not violated by proof of a new and distinct subsequent agreement in the nature of a novation. Wimberly v. Tanner, 34 Ga. App. 313, 129 S.E. 306 (1925) (decided under former Civil Code 1910, § 5788); Mutual Furn. Co. v. Moore, 60 Ga. App. 655, 4 S.E.2d 711 (1939); Long Tobacco Harvesting Co. v. Brannen, 98 Ga. App. 142, 105 S.E.2d 390 (1958) (decided under former Code 1933, § 38-501); 99 Ga. App. 541, 109 S.E.2d 90 (1959);later appeal,(decided under former Code 1933, § 38-501).
Evidence of nondelivery.
- It is no contradiction of a written agreement, which does not of itself purport to have been delivered, to assert its nondelivery, and therefore parol evidence is admissible to disprove the fact of delivery. Nalley Land & Inv. Co. v. Merchants' & Planters' Bank, 178 Ga. 818, 174 S.E. 618 (1934), later appeal, 187 Ga. 142, 199 S.E. 815 (1938) (decided under former Code 1933, § 38-501).
Implication or rebuttal of trust.
- Parol evidence rule does not prevent the introduction of evidence to show the nature of the transaction or the circumstances or conduct of the parties, either to imply or rebut a trust, although the effect is to alter or vary a written instrument. Hodges v. Hodges, 221 Ga. 587, 146 S.E.2d 313 (1965) (decided under former Code 1933, § 38-501).
Identification of real party in interest.
- Parol evidence is admissible when not a variance with a written contract to identify the real party in interest. Contractors Mgt. Corp. v. McDowell-Kelley, Inc., 136 Ga. App. 116, 220 S.E.2d 473 (1975) (decided under former Code 1933, § 38-501).
Proof of signature.
- Although under O.C.G.A. § 13-2-2(1) and former O.C.G.A. § 24-6-1, parol evidence was inadmissible to add to, take from, or vary a written contract, it was properly admitted to show that a promisor who died signing a guaranty had actually signed the guaranty. A store employee testified that the employee witnessed the store owner sign the guaranty. John Deere Co. v. Haralson, 278 Ga. 192, 599 S.E.2d 164 (2004) (decided under former O.C.G.A. § 24-6-1).
Lack of malice.
- When evidence is not offered for the purpose of altering the substantive rights of the parties under a written sales contract, but for the purpose of establishing that one party did not act maliciously and oppressively, and if the evidence is probative on that issue, the evidence should be admitted. Oden & Sims Used Cars, Inc. v. McMullen, 153 Ga. App. 127, 264 S.E.2d 580 (1980) (decided under former Code 1933, § 38-501).
Division of consideration.
- While proof of parol contemporaneous agreements is generally inadmissible to add to, take from, or vary a written contract, the allegations of the petition setting forth the division to be made of the consideration to be paid to the co-obligees under the contract do not come within the inhibition of the parol evidence rule since such alleged facts do not add to, take from, or vary the terms of the written instrument, but merely set forth the respective interests of the obligees. Bernstein v. Fagelson, 38 Ga. App. 294, 143 S.E. 237 (1928) (decided under former Civil Code 1910, § 5788).
Waiver of stipulation of contract.
- While parol evidence is inadmissible to add to, take from, or vary a written contract, the parol evidence rule has no application to a case if waiver of a stipulation of the contract is being asserted. Henry v. Hemingway, 159 Ga. App. 375, 283 S.E.2d 341 (1981) (decided under former Code 1933, § 38-501).
2. Notes
Contract partly in parol.
- Parol evidence is admissible not only when a promissory note is obtained by fraud, but when the note is not the entire contract between the parties, and when the contract is partly in parol and partly in writing. Crooker v. Hamilton, 3 Ga. App. 190, 59 S.E. 722 (1907) (decided under former Civil Code 1895, § 5201).
Inquiry into consideration.
- When a promissory note recited no consideration except in the words "for value received," the real consideration of the note may be inquired into as far as may be necessary to the defense pleaded. Dunson & Bros. Co. v. Smith Seed Co., 26 Ga. App. 585, 106 S.E. 914 (1921) (decided under former Civil Code 1910, § 5788).
Failure of consideration.
- In a suit on an unconditional promise to pay, although the consideration may not be expressed in the instrument, it is ordinarily permissible for the defendant to plead, and to prove by parol, that the consideration supporting the promise has failed either in whole or in part. Tyre v. Price, 52 Ga. App. 526, 183 S.E. 843 (1936) (decided under former Code 1933, § 38-501).
Note placed as collateral.
- When there was evidence of a parol agreement on the part of the payee of the collateral note that a note should be held as collateral, which was itself a fact not affecting the contents of the writing, and which, if credible, tended to show that the note had been placed as collateral, the fact as to the pledge, being entirely independent from the contents of the note, could properly be shown by parol. Buffington v. Bank of College Park, 157 Ga. 570, 122 S.E. 50 (1924) (decided under former Civil Code 1910, § 5788).
When the alleged oral agreement was entered into subsequent to the execution of the promissory note, former O.C.G.A. § 24-6-1 (see now O.C.G.A. § 24-3-1) did not stand as a barrier to the agreement's enforcement. South Atl. Prod. Credit Ass'n v. Gibbs, 257 Ga. 521, 361 S.E.2d 167 (1987) (decided under former O.C.G.A. § 24-6-1).
3. Real Estate Transactions
Creation of trust.
- Deed absolute in form may be shown by parol evidence to have been made in trust for the benefit of the grantor if the maker remains in possession of the land. Hall v. Turner, 198 Ga. 763, 32 S.E.2d 829 (1945) (decided under former Code 1933, § 38-501).
Clerical error.
- In view of the particular statement in a deed that the tract conveyed was bounded on the east and south by lands of named owners, parol evidence was admissible for the purpose of applying the description to the intended subject matter and to show that the statement as to the district number was a clerical error. Smith v. Federal Land Bank, 181 Ga. 1, 181 S.E. 149 (1935) (decided under former Code 1933, § 38-501).
4. Other Agreements
Receipt in full.
- Receipt for money in full of all demands is always open to contradiction or explanation. Walters v. Odom, 53 Ga. 286 (1874) (decided under former Code 1873, § 3800).
Implied trust.
- While an express trust must be created by writing and cannot be proved by parol, implied trusts may be established by parol evidence, although the effect of such evidence is to alter or vary a written instrument, and although the defendant sets up and insists upon the statute of frauds. Hall v. Turner, 198 Ga. 763, 32 S.E.2d 829 (1945) (decided under former Code 1933, § 38-501).
Implied warranty.
- In an action to recover the purchase price of defective goods, testimony that the defendant told the plaintiff the goods would give satisfactory service and that the defendant would give a one-year warranty with reference to the service was admissible to show the alleged breach of an implied contract and the trial court did not err in failing to charge the general rule concerning parol evidence. Cloud v. Stewart, 92 Ga. App. 247, 88 S.E.2d 323 (1955) (decided under former Code 1933, § 38-501).
Surety induced by false representation.
- Plea to the effect that a surety was induced to sign by a false representation that a surety whose name appeared as such had already signed the contract of suretyship is not an effort to vary the terms of a written contract. W.T. Rawleigh Co. v. Kelly, 78 Ga. App. 10, 50 S.E.2d 113 (1948) (decided under former Code 1933, § 38-501).
Assignment of salary as cover for usurious loan.
- Parol evidence is admissible to show that a purported assignment of salary is but a cover for a usurious loan, notwithstanding its recitals to the contrary. Hinton v. Mack Purchasing Co., 41 Ga. App. 823, 155 S.E. 78 (1930) (decided under former Civil Code 1910, § 5788).
Variance in deposit slip.
- When husband had withdrawn money from the wife's account, in subsequent suit by the wife against the bank to recover money, evidence offered by the defendant bank, to the effect that while the deposit slip showed the money deposited to the separate account of the wife, such money was in fact placed to the credit of a joint business enterprise of the husband and wife, and thereafter drawn out on checks against this account by the plaintiff and her husband, was admissible in support of the defense urged by the defendant bank. Greeson v. Farmers' & Merchants' Bank, 50 Ga. App. 566, 179 S.E. 191 (1935) (decided under former Code 1933, § 38-501).
Bill of sale.
- Court erred in admitting parol evidence that a "bill of sale" was not intended to transfer ownership of a boat, the bill being executed on the regular required Coast Guard form, and all language therein relating to a sale and conveyance, the other provisions merely relating to the method of payment. Peterson v. Lexington Ins. Co., 753 F.2d 1016 (11th Cir. 1985) (decided under former O.C.G.A. § 24-6-1).
Conversations supplementing recertification documents for lease.
- When a public housing lease required information about family size and income annually, but the lease did not indicate that completion of the recertification documents was a condition precedent to renewal of the lease, the recertification document was not an agreement and was not merged with the lease so as to make admission of conversations supplementing the information contained in the recertification documents a violation of the parol evidence rule. Decatur Hous. Auth. v. Christian, 182 Ga. App. 270, 355 S.E.2d 764 (1987) (decided under former O.C.G.A. § 24-6-1).
Collective bargaining agreement.
- In action by retired employees to prevent the corporation from modifying their health insurance benefits, the fact that both parties offered reasonable interpretations of a collective bargaining agreement that gave full effect to one clause and qualified the other was sufficient to establish that the contract was ambiguous and that the trial court should have considered extrinsic evidence. Stewart v. KHD Deutz of Am., Corp., 980 F.2d 698 (11th Cir. 1993), cert. denied, 519 U.S. 930, 117 S. Ct. 300, 136 L. Ed. 2d 218 (1996) (decided under former O.C.G.A. § 24-6-1).
Not admissible if contract unambiguous.
- Trial court properly struck a paragraph in an estate executrix's affidavit in opposition to the decedent's nephew's motion for summary judgment, arising from an action regarding estate assets and joint venture agreements, as the executrix's assertions regarding a handwritten note by the husband constituted parol evidence which could not be used to alter the meaning of the unambiguous language of the agreements, and necessity was not shown for admission of the hearsay evidence; accordingly, the handwritten notation that the properties at issue were to be sold for "market value" could not change the contractual language that indicated that the properties would be sold for a predetermined price. Zaglin v. Atlanta Army Navy Store, Inc., 275 Ga. App. 855, 622 S.E.2d 73 (2005) (decided under former O.C.G.A. § 24-6-1).
Life insurance beneficiary designation form.
- Trial court erred by granting summary judgment to a child in a suit brought by a sibling seeking a determination that the sibling was the sole beneficiary of their parent's life insurance policy as the sibling sufficiently alleged fraud and/or forgery with regard to a second beneficiary designation form allegedly signed by the parent. As such, the trial court should have permitted the sibling to introduce two affidavits that supported the sibling's allegations that the second beneficiary designation form was void. Weatherly v. Weatherly, 292 Ga. App. 879, 665 S.E.2d 922 (2008) (decided under former O.C.G.A. § 24-6-1).
With regard to the defendant's murder conviction, the trial court properly denied the defendant's motion for a new trial because the victim's out-of-court statements to the victim's brother were admissible under the necessity exception set forth in O.C.G.A. § 24-3-1(b); therefore, the defendant's counsel was not deficient because there is no deficient performance when an attorney fails to object to admissible evidence. Bulloch v. State, 293 Ga. 179, 744 S.E.2d 763 (2013).
Written consent required for timber cutting.
- In an action for timber conversion, the trial court erred when the court denied the plaintiff's motion in limine to exclude parol evidence concerning the plaintiff's alleged consent to the timber company's cutting and other topics because O.C.G.A. § 51-12-51(a) clearly and unambiguously required written consent and any verbal consent to cut timber on the property was inadequate; parol evidence regarding an understanding to cut timber at or even after the closing was inadmissible as it could be taken to contradict the plain terms of the loan documents, which barred cutting without written consent; and the jury apparently considered the parol evidence in the course of reaching the jury's verdict for the timber company. AgSouth Farm Credit, ACA v. Gowen Timber Co., 336 Ga. App. 581, 784 S.E.2d 913 (2016).
RESEARCH REFERENCES
Am. Jur. 2d.
- 17A Am. Jur. 2d, Contracts, § 329 et seq. 29A Am. Jur. 2d, Evidence, § 1104.
C.J.S.- 32A C.J.S., Evidence, §§ 1125 et seq., 1130 et seq., 1148 et seq., 1207, 1211, 1212, 1216, 1241 et seq., 1247, 1249 et seq., 1270, 1271.
ALR.
- Parol evidence to prove title to real property when the title is only collaterally involved, 1 A.L.R. 1143.
Admissibility of parol evidence to vary or explain the contract implied from the regular endorsement of a bill or note, 11 A.L.R. 637; 22 A.L.R. 527; 35 A.L.R. 1120; 54 A.L.R. 999; 92 A.L.R. 721.
Parol evidence rule as applied to lease, 25 A.L.R. 787; 88 A.L.R. 1380; 151 A.L.R. 279.
Parol evidence rule as applied to escrow agreement, 49 A.L.R. 1529.
Parol evidence in relation to assumption of mortgage debt by grantee of mortgaged property, 50 A.L.R. 1220; 143 A.L.R. 548.
Parol evidence rule as applicable to agreement for improvement or alterations by vendor of real property, 68 A.L.R. 245.
Parol evidence rule as applied to letters or other informal writings not purporting to be the agreement itself, 68 A.L.R. 1251.
Admissibility of parol evidence of contents of lost certificate of protest, 75 A.L.R. 134.
Parol evidence rule as affecting extrinsic evidence to show or to negative usury, 82 A.L.R. 1199; 104 A.L.R. 1261.
Admissibility of parol or extrinsic evidence to show promise of employment or other consideration not embodied in written release of claim for bodily injury or death, 92 A.L.R. 248.
Admissibility of parol or extrinsic evidence to alter or supplement written records of local legislative bodies, 98 A.L.R. 1229.
"Contractual" consideration as regards parol evidence rule, 100 A.L.R. 17.
Admissibility of parol evidence to show whether particular word or phrase was intended to connote a chattel mortgage or conditional sale, 101 A.L.R. 625.
Exception to rule of admissibility of parol evidence to show that deed absolute on its face was intended as a mortgage, 111 A.L.R. 448.
Duty of federal courts to follow decisions of state courts as to the so-called "parol evidence rule"; and conflict of laws as to that rule, 141 A.L.R. 1043.
Application and effect of parol evidence rule as determinable upon the pleading, 10 A.L.R.2d 720.
Parol evidence rule as applicable to agreement not to engage in competition with a business sold, 11 A.L.R.2d 1227.
Parol evidence to show duration of written contract for support or maintenance, 14 A.L.R.2d 897.
Failure to object to parol evidence, or voluntary introduction thereof, as waiver of defense of statute of frauds, 15 A.L.R.2d 1330.
Parol evidence rule as applied to deposit of funds in name of depositor and another, 33 A.L.R.2d 569.
Parol evidence rule as applied to written guaranty, 33 A.L.R.2d 960.
Applicability of parol evidence to written listing agreement of real estate broker, 38 A.L.R.2d 542.
Admissibility of extrinsic evidence to explain or contradict bank deposit slips, deposit entries in passbooks, certificate of deposit, or similar instruments, 42 A.L.R.2d 600.
Admissibility of parol evidence of election officials to impeach election returns, 46 A.L.R.2d 1385.
Admissibility of parol evidence as to proceedings at meetings of stockholders or directors of private corporations or associations, 48 A.L.R.2d 1259.
Parol evidence to show that lease of personalty, absolute on its face, is conditional sale, 57 A.L.R.2d 1076.
Applicability of parol evidence rule to agreement between stockbroker and customer, 60 A.L.R.2d 1135.
Admissibility of parol evidence with respect to reservations or exceptions upon conveyance of real property, 61 A.L.R.2d 1390.
Admissibility of parol evidence as to limitation on cost structure in builder's action on written cost-plus-fee construction contract, 84 A.L.R.2d 1324.
"Merger" clause in written contract as precluding conviction for false pretenses based on earlier oral false representations, 94 A.L.R.2d 570.
Applicability of parol evidence rule in favor of or against one not a party to contract of release, 13 A.L.R.3d 313.
Parol exception of fixtures from conveyance or lease, 29 A.L.R.3d 1441.
Application of parol evidence rule in action on contract for architect's services, 69 A.L.R.3d 1353.
Modern status of rules governing legal effect of failure to object to admission of extrinsic evidence violative of parol evidence rule, 81 A.L.R.3d 249.
Admissibility of evidence to establish oral antenuptial agreement, 81 A.L.R.3d 453.
Liability in tort for interference with physician's contract or relationship with hospital, 7 A.L.R.4th 572.
Admissibility of testimony concerning extrajudicial statements made to, or in presence of, witness through interpreter - state cases, 97 A.L.R.6th 567.
Validity, construction, and enforcement of oral antenuptial agreements, 15 A.L.R.7th 2.