SMITH v. STANDARD OIL COMPANY., 227 Ga. 268, 180 S.E.2.d 691
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Summary
Judgment affirmed. All the Justices concur, except Grice, Felton, and Hawes, JJ., who dissent.
Summary
Judgment affirmed. All the Justices concur, except Grice, Felton, and Hawes, JJ., who dissent.
Text
Dickens & Hall, G. L. Dickens, Jr., for appellee.Robert H. Herndon, for appellant.
The Standard Oil Company, a division of Chevron Oil Company, as transferee, filed a petition seeking specific performance of an option contract wherein the defendant had agreed to convey described real property upon payment of $15,000. A motion to dismiss for failure to skate a claim was filed and overruled by the trial judge. This court affirmed such ruling on appeal. See Smith v. Standard Oil Co.,
The defendant's affidavit filed in opposition to the motion for summary judgment stated that the option contract was delivered to the optionee subject to the condition that her husband approve it and his approval was not obtained. The plaintiff moved to strike this portion of the defendant's affidavit on the ground that the facts set out in the affidavit constitute parol contemporaneous evidence which contradicts or varies the terms of the written option set out in the complaint; and that parol contemporaneous evidence is inadmissible to contradict or vary the terms of this option. The trial court sustained the motion to strike, found that there was no material issue of fact, and granted the plaintiff a summary judgment. This appeal is from that judgment. Held:
1. The appellant contends that the option contract is unenforceable because the delivery thereof to the optionee was conditioned on the approval of her husband and that his approval was not obtained.
The evidence in this case shows that the appellant executed a written option agreeing to sell certain described property. The option agreement contains the following provisions: "That the seller, for and in consideration of the sum of one dollar, to her in hand paid at and before the sealing and delivery of these presents, the receipt and sufficiency whereof is hereby acknowledged, has granted, bargained, sold and delivered, and by these presents does grant, bargain, sell and deliver unto the said purchaser, his heirs and assigns, an option to purchase under terms and conditions hereinafter set out . . . This option shall be for a period beginning this date and ending at midnight at the end of the day on the 31st October, 1968 . . . Time is of the essence of this contract."
The contention of the appellant that the option was delivered on condition that her husband approve it is inconsistent and at variance with the written option which clearly states that the instrument for a valid consideration had been delivered and that the option "shall be for a period beginning this date."
In the unanimous opinion of this court in Bass Dry Goods Co. v. Granite City Manufacturing Co.,
The grant of summary judgment in favor of the appellee was not error for any reason assigned.
GRICE, Justice, dissenting. I feel strongly that the defendant should have been allowed to show that the option contract was delivered to the optionee subject to the condition that the defendant's husband approve it, and that his approval was not obtained.
Consideration of such evidence is authorized by Code 20-901, which provides that, "Any fact going to show that the original contract was not obligatory, though executed, may be set up as a defense"; and by Code 20-902, which in essential part declares that, "A condition, precedent or subsequent, not complied with . . . may be pleaded as a defense."
Therefore, I respectfully dissent from Division 1 of the opinion, and from the judgment.
In my view, there is nothing to sustain the position of the majority, which is based upon the parol evidence rule.
That rule, as enunciated in this State, provides that, "Parol contemporaneous evidence is inadmissible generally to contradict or vary the terms of a valid written instrument." Code 38-501. (Emphasis supplied.)
At the outset, it should be pointed out that here the evidence relied upon did not vary any of the terms of the option contract.
It is also noteworthy that it did not contain any term whereby the parties agreed that delivery had been made or was then made. The majority opinion relies upon the language which, in material part, is as follows: The "seller, for and in consideration of the sum of one dollar, to her in hand paid at and before the sealing and delivery of these presents, the receipt and sufficiency whereof is hereby acknowledged, has granted, bargained, sold and delivered, and by these presents does grant, bargain, sell and deliver unto the said purchaser, his heirs and assigns, an option to purchase under terms and conditions hereinafter set out . . ." (Emphasis supplied.) This is not a term of the contract. It is only a recital, a formal portion, of the contract. Language such as this commonly appears in documents used in real estate and other commercial transactions. Such language in them, as in this, certainly does not preclude showing that these contracts were not in fact delivered. If this were so, it would be virtually impossible ever to show the nondelivery of any document.
It is well established that, "[T]he parol evidence rule applies, insofar as a contract is concerned, only to those elements or parts of the writing which are contractual between the parties and not to mere recitals of fact, and applies only to the essential and substantial, as distinguished from the merely formal, parts of a writing." 30 AmJur2d 168, Evidence, 1032.
The further quoted language of the contract here, that "This option shall be for a period beginning this date and ending at midnight at the end of the day on the 31st October, 1968," and "Time is of the essence of this contract," likewise does not preclude a showing that the contract was never made and delivered.
Therefore, the evidence offered here did not vary the terms of the contract so as to violate the parol evidence rule.
The decisions of Bass Dry Goods Co. v. Granite City Manufacturing Co.,
It is noteworthy that in all of these cases the document appeared on its face to be absolute and unconditional, as here. Also in each, as in the instant case, the defendant sought to show that actually no contract had ever been entered into, because of non-performance of a condition, as to which the instrument was silent.
Furthermore, and of more consequence than anything else, in each of the decisions the party sought to be bound by the terms of the document was permitted to show to the trial court what he contended had actually happened for it to consider on that issue of fact. This position, I submit, is in keeping with the most important of all rules of evidence, that "The object of all legal investigations is the discovery of truth." Code 38-101.
The instant case involves a well established substantive rule of evidence as it relates to the law of contracts. The recognition and application of this principle is of great importance in the trial of suits dealing with the vital issue of whether contracts were or were not entered into. For these reasons, it is hoped that upon further consideration the error here will be corrected at the first opportunity.
I am authorized to state that Justice Felton and Justice Hawes join me in this dissent.
1970
This document cites
- Supreme Court of Georgia - SMITH v. STANDARD OIL COMPANY., 226 Ga. 339, 175 S.E.2.d 14 (1970)
- Supreme Court of Georgia - LEE v. GARLAND., 208 Ga. 251, 66 S.E.2.d 223 (1951)
- Supreme Court of Georgia - THOMAS v. EASON; et vice versa., 208 Ga. 822, 69 S.E.2.d 729 (1952)
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