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KISER et al., executors, v. GODWIN.
35171.
Action on contract. Before Judge Shaw. Fulton Superior Court. March 11, 1954.
NICHOLS, J.
The court did not err in dismissing on demurrer the sellers' petition to recover an amount additional to the agreed purchase price of the land, where the sales contract did not provide for such additional amount, and provided that it was to constitute the sole and entire agreement between the parties.
The executors of the estate of Lucy Peel Kiser brought an action against James B. Godwin upon substantially the following allegations: In March of 1952, the executors and Godwin were engaged in negotiations for the sale of the deceased's residence. Godwin made a written offer on March 31, 1952, to purchase the property for $100,000 cash and a note for $35,000 payable on or before six months after the closing date. The executors rejected Godwin's offer, whereupon he proposed that, if the executors would accept his original offer to purchase the Kiser property, and if all lots proposed to be subdivided from the Kiser property were sold before the purchase-money note became due, then he would agree to pay $5,000 to the executors in addition to the stipulated price of $135,000. Godwin delivered a signed letter to the executors on March 31, in which he stated: "The buyer agrees, in the event of sale of all lots proposed to be subdivided from said property prior to the due date of the final payment note, to pay the executors of said estate $5,000 in addition to the original purchase price of $135,000." The executors accepted this proposal and entered into a contract on April 2, 1952, for the sale of the property for $135,000, on the terms as set out in the original written offer. The sale contract contained the following provision: "This contract constitutes the sole and entire agreement between the parties and no modification hereof shall be binding unless attached hereto and signed by each; and no representations, promises or inducements shall be binding upon either party or agent except as herein stated." All the lots proposed to be subdivided from the Kiser property were sold before the due date of the final note, and so the event, upon which the payment of $5,000 by Godwin was contingent, has occurred.
To show that the court erred in sustaining a demurrer to their petition, the executors contend: (1) that Godwin's letter of March 31 and the contract of sale of April 2 are contemporaneous writings relating to the sane transaction, which demonstrate, when construed together, that the contract of sale was made in consideration of the agreement contained in the letter; and (2) that the agreement of March 31 was a distinct, collateral agreement not inconsistent with the contract of sale.
The merger clause in the contract of sale answers these contentions. The parties provided against the use of any evidence, other than the writing itself, as to their intent in the transaction. The paper itself, together with any modifications attached and signed by both parties, is to be the "sole and entire agreement." It is also provided that only the promises, representations, or inducements made in the writing shall be binding upon the parties.
Reformation of this clause is not sought upon any ground. Its effect is to confine the evidence of the agreement to the document itself. Godwin's alleged promise was either to pay $5,000 if the executors would accept his written offer, or to pay $5,000 in addition to $135,000 if the executors would convey the land to him, both promises being dependent upon a further condition. Neither the former promise in parol nor the latter promise in writing was attached to or stated in the document comprising the contract of sale. Whether called promises, inducements, or modifications, they were rendered nugatory by the subsequent execution of the document containing the quoted merger clause.
The cases cited by the executors, such as Manry v. Hendricks, 66 Ga. App. 442 (18 S. E. 2d 97), in which the court looked to contemporaneous writings to determine the intent of the parties, and such as Langenback v. Mays, 205 Ga. 706 (54 S. E. 2d 401, 11 A. L. R. 2d 1221), Spier v. Lambdin, 45 Ga. 319, and Indiana Truck Corp. v. Glock, 46 Ga. App. 519 (168 S. E. 124), in which the courts enforced a distinct, independent, and collateral parol agreement not inconsistent with a later written agreement, are materially different from the present case, for the written contracts involved in those cases did not have an express merger provision, such as the provision in the sales contract in this case.
The court did not err in sustaining the general demurrer to the executors' petition.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.
Wright Gellerstedt, Candler, Cox, McClain & Andrews, contra.
Heyman & Abram, for plaintiffs in error.
DECIDED OCTOBER 14, 1954.
Saturday May 23 03:41 EDT


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