Atlanta Journal v. Power

Broyles, C. J. “Parol evidence (especially of the debtor himself) that a settlement closed up by absolute notes and mortgages was, by oral agreement of the parties, to be revised by the debtor, and the notes and mortgages reduced by crediting down all errors, contradicts the writings, and is inadmissible.” Dyar v. Walton, 79 Ga. 466 (7 S. E. 220). Under this ruling and the facts in the instant case, the court erred in refusing to strike, on motion of the plaintiff, the defendant’s plea. This ruling is not in conflict with the decision in McLendon v. Callaway, 52 Ga. 41, relied on by the defendant in error; for in that ease there was no motion to strike the defendant’s plea, and evidence in support of the. plea was admitted without objection, and the Supreme Court said: “All that we do decide is, that the court erred in its charge in saying to the jury that: ‘If you believe from the evidence that the defendant, with such knowledge as I have charged you, signed and delivered the notes, then he waived any defense he might have had, if any, to the accounts exhibited by the plaintiffs to defendant.’ This charge of the court excluded from the consideration of the jury the defendant’s evidence as to what he says was the intention and understanding of the parties at the time the drafts were executed. This evidence being before the jury, the defendant had the right to have had it considered by them for what it was worth in contradiction of the plaintiff’s evidence as to that question in the case.” If in the instant case there had been no motion to strike the defendant’s plea, and if evidence sustaining the plea had been introduced' without objection, and if the court in its charge had excluded that evidence from the consideration of the jury, the two cases would have been on all-fours, and the decision in the McLendon [282] case would be controlling in this case. The facts of the two cases clearly distinguish the one from the other. The error in the ruling on the defendant’s plea rendered the further proceedings in the case nugatory. Judgment reversed. Luke and Bloodworth, JJ., concur.