Daniels v. Smith

Beck, J. (After stating the foregoing facts.) There was no allegation of any writing contemporaneous with the bond, embodying the terms and conditions upon which the paper was to become void and inoperative, as set forth in the petition of Daniels, the security. Manifestly, from the recitals in the application, it is an attempt to destroy by parol evidence the binding force of the bond by the addition of terms not contained in the instrument itself, as it recites the statements made by Odum and the deputy sheriff, and by the plaintiff in error to those parties, as being the [563] grounds for adjudging the bond not to be valid and binding as to the surety. Section 5788 of the Code of 1910 provides that parol contemporaneous evidence is inadmissible generally to contradict or v^ry the terms of a valid written instrument. And to have allowed the surety upon this bond to make the defense set up would have been in violation of the provision of our law contained in this section. In the case of Hirsch v. Oliver, 91 Ga. 554 (18 S. E. 354), which was a suit upon certain promissory notes, it was said:. “The plea which sought to contradict the notes by setting up an understanding that the maker was not to be bound, that the notes were executed for a purpose other than that of binding him to pay money — a purpose wholly at variance with their plain tenor and import, — contained no suggestion that the understanding and purpose alleged were evidenced by any writing, or that anything was omitted from the notes by fraud, accident, or mistake. It contained no denial of the making and delivery of the notes, but simply sought to run over them and crush them by an alleged contemporaneous understanding or agreement in conflict both with their letter and their legal effect. This plea presented no valid defense to the action, and there was no error in striking it.” And in the case of Lewis v. Board of Commissioners, 70 Ga. 486, which was a suit upon a county treasurer’s bond, a surety upon the bond set up the defense that it was not to be binding unless signed by certain other named persons as sureties. It was held: “Where the bond of a county treasurer was absolute on its face, and it did not appear, either from it or any other writing prior or contemporaneous therewith, that it was left with the ordinary on condition, after breach of the bond by the principal the sureties could not set up by way of defense, and establish by parol, that when they signed the bond and left it in the hands of the officer authorized to receive it, they stated to him that they were not to be bound until other sureties, whom they named, had also signed.” Numerous other decisions to the same effect might be cited, but it is unnecessary. Many of them will be found collected and cited under the code section set forth above. Judgment affirmed. All the Justices concur, except Fish, C. J absent.