ARGUED JANUARY 15, 1952.
DECIDED MARCH 12, 1952. REHEARING DENIED MARCH 25, 1952.
Specific performance. Before R. Eve, Judge Emeritus. Worth Superior Court. November 1, 1951.
W. J. Forehand, P. Q. Bryan and Robert Culpepper Jr., for plaintiff in error.
Ford Houston, contra.
1. The court did not err in overruling the demurrers of the defendant to the petition.
2. In the absence of fraud, accident, or mistake, a complete, unambiguous contract can not be enlarged by parol evidence which is inconsistent with the written instrument.
3. Fraud which will relieve a party who can read from reading a contract prepared for his signature must be such fraud as prevents him from reading.
Nos. 17731, 17732. ARGUED JANUARY 15, 1952 — DECIDED MARCH 12, 1952 — REHEARING DENIED MARCH 25, 1952.
Thomas R. Eason filed a petition for the specific performance of an alleged written contract for the sale of land, against B. D. Thomas, and in substance alleged: On August 25, 1950, the defendant executed and delivered to the petitioner the exclusive and irrevocable option and right to purchase described lands. At the time of the execution and delivery of the contract, the petitioner paid the defendant one dollar as recited in the contract. The defendant agreed to sell the lands described to the petitioner for $7500, which was the value of the lands described, "and said contract was fair and just." On October 2, 1950, the petitioner gave to the defendant written notice of acceptance of the offer to sell, as provided by the contract, which notice was given by registered mail, as provided in paragraph 9 of the contract. On November 22, 1950, the petitioner tendered to the defendant $7500 in lawful currency of the United States, "which money was tendered to said defendant for said land under the terms of said contract," and the defendant refused to accept the money and stated he would not sell the lands to the petitioner. Money damages would not sell the lands to the petitioner adequate relief, and the defendant should be required to perform his contract. The prayers were for process, that the defendant be required to specifically perform, and to convey the land to the petitioner under the terms of the contract, that the defendant be enjoined from conveying the lands to others, and from selling or cutting the timber on the land, and for other relief.
A copy of the option was attached to the petition as "Exhibit A," and in so far as material to the rulings here made, the recitals of the contract were: In consideration of the sum of one dollar, the undersigned agrees to sell and convey to Thomas R. Eason described lands. The option is given to enable the buyer to obtain a loan made or insured by the United States of America, acting through the Administrator of the Farmers Home Administration, pursuant to Title 1 of the Bankhead-Jones Farm Tenant Act, as amended. The total purchase price for the lands is $7500, in addition to the one dollar above mentioned. The seller agrees to furnish title insurance, such as the government shall approve. The option may be exercised at any time while the offer shall remain in force by mailing, or telegraphing, or delivering in person, a written notice of acceptance to the seller at a given address, the offer to remain irrevocable for a period of three months. Section 12 of the contract provides that the purchase price stipulated in the option represents the entire consideration for the sale of the land, and that any person making a false representation is subject, upon conviction, to be punished as provided by certain sections of the Code of the United States, and that any side agreement between the seller and the buyer for the payment of a greater or less sum is void and unenforceable. In Section 13 it is provided that, if any money or thing of value should be paid or delivered to the seller by the buyer in addition to the purchase price, such excess payment shall be deemed to be intended as a payment on the buyer's indebtedness owed to, or insured by, the Government.
The defendant filed general demurrers to the petition, on the grounds that it set out no cause of action and there was no equity in the petition. He demurred specially to the allegation that $7500 "was tendered to said defendant for said land under the terms of said contract," on the grounds that it is a conclusion and not based on pleaded facts; that it does not allege that the sum was procured from the United States of America; and that the option is in the alternative, and the allegation that the sum was tendered "under the terms of said contract" is ambiguous, and should be construed against the pleader. The defendant's general and special demurrers were overruled, and exceptions pendente lite were filed to that judgment.
In his answer the defendant alleged: The agreement reached by the petitioner and the defendant was that the defendant was to pay $10,500 for the farm. The petitioner stated to the defendant that the Government would not make a loan exceeding $7500, but that the petitioner would pay the balance of $3000 on the side to make up the purchase price of $10,500. The defendant can not read without his glasses because of defective eyesight, and he had left his glasses at Kingston, in North Georgia, and could not read the option. The petitioner stated that he was in a special hurry to get the option signed in order to procure a Government loan, and the defendant, "knowing that petitioner was an ordained minister of the gospel . . , reposed utmost confidence in his honesty and integrity and agreed to let the petitioner read the option to him." When the petitioner had finished reading the option, he assured the defendant he would receive the balance of $3000 when the deed was signed, and the defendant signed the option, believing that the petitioner had truthfully and textually read the entire option to him. On September 7, 1950, the defendant received a letter from the petitioner, enclosing a revised option to be signed by the defendant, which was the same as the one the defendant had already signed except that the revised option showed the amount of $7469, instead of $7500, as the purchase price. The defendant in the meantime had recovered his eyeglasses, and he read the revised option, and for the first time learned that the misrepresentation of the purchase price made the petitioner and the defendant criminals under the Federal laws, and subject to fine and imprisonment; and further learned for the first time that the payment of $3000 as agreed upon would have to be paid to the Government and would inure to the benefit of the petitioner under the terms of paragraph 13 of the option. The petitioner did not read paragraphs 12 and 13 of the option to the defendant, and he did not know of the terms of said option until he read the revised option. The petitioner knew that the contract he was urging the defendant to sign was illegal, and his failure to read the contract in its entirety was for the purpose of misleading the defendant into signing an illegal contract. As soon as the defendant found that he had been duped by the petitioner, he refused to sign the revised option, and notified the defendant that he was rescinding the option, for fraud. There has been a total failure of consideration, in that the petitioner has not procured a loan made or insured by the United States of America. The agreement to make a side payment of $3000 is illegal and against the public policy of the United States, and the petitioner is estopped to demand specific performance of the option for the reason that he does not come into a court of equity with clean hands.
The petitioner filed demurrers to the defendant's answer, which were overruled, and exceptions pendente lite were filed to this judgment. The trial resulted in a verdict and judgment for the specific performance of the contract. The defendant's motion for new trial, as amended, was overruled, and in the main bill of exceptions the defendant assigns error on the judgment overruling his motion for new trial, and on his exceptions pendente lite to the overruling of his demurrers to the petition. By cross-bill of exceptions the petitioner assigns error on his exceptions pendente lite to the overruling of his demurrers to the defendant's answer. The parties will be hereinafter referred to as they appeared in the trial court.
1. The trial court did not err in overruling the general demurrers of the defendant to the petition. A cause of action for specific performance of the contract was duly set forth in precise allegations. The special demurrer of the defendant to the allegation that the purchase price "was tendered to said defendant for said land under the terms of said contract," as being a conclusion, is without merit. That the tender was made under the terms of the contract is not a conclusion, when viewed with the other allegations as to tender. The allegations of tender in their entirety had reference to an ultimate fact, susceptible of proof ( Schneider v. Smith, 189 Ga. 704, 706 (5) 7 S.E.2d 76), and the allegations are not ambiguous as contended.
While, under the terms of the written contract, it was contemplated that the petitioner would procure a loan under the Bankhead-Jones Act (U.S.C.A. Supp., § 1001), this provision of the option was solely for the benefit of the petitioner. That he may have procured his loan from an independent source is not a matter about which the defendant can complain.
2. The alleged parol agreement for a side payment of $3000, upon which the defendant relies, is void, unenforceable, and affords no defense to the written contract. Parol evidence is inadmissible to add to, take from, or vary a written contract. If only a part of the contract is reduced to writing, and it is manifest that the writing was not intended to speak the whole contract, then parol evidence is admissible. Code, § 20-704. The allegation upon which the defendant relies as to a parol agreement for a side payment is an attempt to add to a complete contract, and this allegation contradicts the written contract as to the consideration to be paid to the defendant by the petitioner.
"To bring a case within the rule admitting parol evidence to complete an entire agreement of which a writing is only a part, two things are essential. First, the writing must appear on inspection to be an incomplete contract; and second, the parol evidence must be consistent with and not contradictory of the written instrument." Forsyth Manufacturing Co. v. Castlen, 112 Ga. 199, 210 ( 37 S.E. 485). See also Brannen v. Brannen, 135 Ga. 590, 591 ( 69 S.E. 1079); Smith v. Baker, 137 Ga. 298 ( 72 S.E. 1093); Bank of Lavonia v. Bush, 140 Ga. 594 ( 79 S.E. 459); Roberts v. Investors Savings Bank, 154 Ga. 45, 52 ( 113 S.E. 398); LaGrange Female College v. Cary, 168 Ga. 291 ( 147 S.E. 390).
The alleged parol agreement for a side payment of $3000, under the provisions of the contract in this case, would be void for the reason that such an agreement is against the public policy of this State. Robinson v. Reynolds, 194 Ga. 324 ( 21 S.E.2d 214); Conklin v. Lewis State Bank, 207 Ga. 106 ( 60 S.E.2d 447).
3. The allegation that the "defendant, knowing that petitioner was an ordained minister of the gospel, who claimed to have been called of God to preach redemption to a lost world, reposed the utmost confidence in his honesty and integrity and agreed to let the petitioner read the option to him," is wholly insufficient under the Code, § 37-707, to establish confidential relations between the petitioner and the defendant. The fact that the defendant may have reposed trust and confidence in the petitioner did not create such a confidential relationship. Dover v. Burns, 186 Ga. 19, 26 ( 196 S.E. 785).
The defendant's contention that the petitioner did not read the entire contract to him falls squarely within the rules laid down by this court in Lewis v. Foy, 189 Ga. 596, 598 ( 6 S.E.2d 788), as follows: "It has often been held by this court that a party to a contract who can read must read, or show a legal excuse for no doing so, and that fraud which will relieve a party who can read must be such as prevents him from reading." (See cases cited).
The defendant alleges that he did not have his glasses, that they were inaccessible, and that the petitioner stated he was in a hurry. This allegation is answered in Lewis v. Foy, supra, in the following language: "The fact that the defendant in the instant case took the deed out of the plaintiff's hands when she undertook to read it will not excuse her for failure to read it, nor does the fact that she did not have her glasses, that they were inaccessible, and that she could not read without them justify her failure to read; nothing being alleged to show an emergency making it necessary that she sign without delay. The defendant's saying he was in a hurry constituted no emergency." (Italics ours.)
The defendant's answer set up no defense to the written contract, and the general grounds of the motion for new trial were properly overruled. Any failure to charge by the trial judge, as contended by the defendant, could not have been injurious to the defendant, since his defense to the action for specific performance could not be sustained as a matter of law.
Judgment affirmed on main bill of exceptions; cross-bill dismissed. All the Justices concur.
ON MOTION FOR REHEARING.
Counsel for the defendant insist in their motion for rehearing that we have overlooked the decision in Brooks v. Matthews, 78 Ga. 739 ( 3 S.E. 627). The Brooks case has never been followed by this court. It was referred to in Augusta Southern R. Co. v. Smith Kilby Co., 106 Ga. 864, 869 ( 33 S.E. 28), Walton Guano Co. v. Copelan, 112 Ga. 319, 322 ( 37 S.E. 411), and in Stoddard Manufacturing Co. v. Adams, 122 Ga. 802, 803 ( 50 S.E. 915), where the ruling in the Brooks case was limited to its particular facts. While only five Justices participated in the Stoddard case, this would in no wise avoid the limitation therein of the Brooks case, since under the Code five Justices might have overruled the Brooks case. Code, § 6-1611.
The ruling in Brooks v. Matthews, supra, is in conflict with older decisions of this court. In Bostwick v. Duncan, Johnston Co., 60 Ga. 383, it was held: "That defendant signed a written agreement without reading it, and it did not contain the contract as in fact made, is no ground for the introduction of parol evidence to vary its terms, etc. It is not the duty of courts to relieve parties from the results of their gross negligence." See also, in this connection, Williams v. Waters, 36 Ga. 454 (3); Lester v. Fowler, 43 Ga. 190; Scurry v. Cotton States Life Ins. Co., 51 Ga. 624; Howard v. Stephens, 52 Ga. 448, 449; Brown v. Cheatham, 66 Ga. 14, 17; Turner v. Rives, 75 Ga. 606, 609.
In this case the defendant contends that the plaintiff was guilty of "fraud" in not reading to him provisions of the contract which specifically made void any agreement for a "side payment." The defendant will not be heard to complain of any alleged "fraud" based on a failure of the plaintiff to read the entire contract, when the alleged agreement for a "side payment" was void independently of the contract provisions declaring such agreements to be void.
Motion for rehearing denied. All the Justices concur.