Commercial Auto Loan Corp. v. Baker , 73 Ga. App. 534 ( 1946 )

The evidence disclosed the following facts: Baker bought the property from P. G. Sales and Service, and signed a note promising to pay the purchase-price in 12 monthly installments of $212.25 each. The conditional-sale contract entered into by Baker and the seller provided that the installment payments were secured by a retention of title to the property sold, with the right reserved to the seller to retake possession of it at any time after a default in the payment of any of the monthly payments and to sell the property without any process. The note and the conditional-sale contract were indorsed over to the defendant by P. G. Sales and Service, "Without recourse," the defendant paying $1600 therefor. The undisputed oral testimony showed that Baker had paid only one installment and was in default for several installments when the property was taken possession of by the defendant. Baker was allowed to testify that he had signed the note, the conditional bill of sale, and the other papers, when they were blank and contained no writing upon them, but had only printed words thereon, leaving blank spaces to be filled in later. He further testified: that he bought the property on a cash transaction from P. G. Sales and Service, and needed $1600 to pay the purchase-price thereof; that he procured that amount from the defendant as a loan, and that he signed the note, the conditional bill of sale, and the other papers in the defendant's office when they were blank, except for some printed words thereon; and that he and the defendant's agent entered into a verbal agreement, at or before he signed the blank papers, that the name "P. G. Sales and Service" should not appear in the note or contract as the payee, and that, in the event he should be away from Atlanta when any installment payment became due, he would not be required to pay it until he returned to the city, provided he returned within 30 or 60 days. The undisputed evidence disclosed that the printing on the conditional-sale contract, which Baker testified that he could read and did see the printed words on the paper that he signed. The above-stated testimony was objected to on the ground that it varied, contradicted, and added to the terms of the written contract between the parties. In the absence of fraud, accident or mistake, a contemporaneous parol conditional stipulation at variance with or inconsistent with the writings will not be annexed. Probasco v. Shaw, 144 Ga. 416 (87 S.E. 466). "A fraud which will relieve from a contract a party, who can read, must be such as prevents him from reading it." Lewis v. Foy, 189 Ga. 596 (6 S.E.2d 788); Wynn v. First Nat.Bank, 176 Ga. 218 (2) (167 S.E. 513). In the instant case, no fraud was alleged or proved, and the evidence failed to show any confidential relationship between the parties, or any emergency or necessity that caused Baker to sign the papers before the blanks therein had been filled out.

Furthermore, it is obvious that, if the blank spaces had been filled out in accordance with the alleged oral agreement, the filled-in matter would have been incompatible with the printed forms on the papers, which were the usual printed forms for a conditional-sale contract. Moreover, the alleged oral agreement that Baker was to have 30 or 60 days of grace in which to pay past-due installments, if incorporated into the writtencontract, would have been in direct conflict with the terms andspirit of that contract. "Parol evidence is admissible to prove portions of an agreement not inconsistent with the writing, where the written instrument does not purport to contain all the stipulations of the agreement; but before parol evidence can be received to show a collateral agreement, it must appear that the contract is incomplete and that what is sought to be shown by parol in no way conflicts with what is contained in the writing. The provision of law which permits parol proof in cases of apparent incompleteness in the statement of the obligations of the parties denies any such proof which may vary the written terms or impose any terms dependent upon oral agreements prior to the contract." Renfroe v.Alden, 164 Ga. 77 (137 S.E. 831). I think that the above-stated testimony of Baker was illegally admitted in evidence, and that the error requires a new trial of the case.

Furthermore, Baker was not entitled to recover the property sued for unless he had paid the defendant company the amount of money, or tendered payment thereof, which he owed it on the purchase-price of the automobile. The undisputed evidence was that Baker still owed the defendant a substantial amount of the purchase-price of the car when he filed this trover suit, and he could not in good conscience recover the car or its value without making restitution of the amount which he owed the defendant on the purchase-price of the car. Williams v. Fouche, 157 Ga. 227 (121 S.E. 217), and cit.; Glover v. Green, 96 Ga. 126 (22 S.E. 664).

The petition in the instant case contained no allegation that the amount still due the defendant had been paid, or that it had been tendered; and the evidence is silent on that subject.