A party to an executed written instrument who undertakes an obligation therein which is absolute except for a contingency specified in the contract cannot, by parol, contradict the terms of such written contract under the contention that the parties orally agreed to release her from her obligation upon the happening of other contingencies not set out in the contract.

DECIDED JULY 1, 1952.

Ethel Mooney (plaintiff in the trial court and plaintiff in error here) brought suit in the Civil Court of Fulton County against Ralph Boyd, a real-estate broker, for the recovery of earnest money paid by her in connection with a lease contract. The contract, which is attached to and made a part of the petition, is signed by the parties to this suit and the prospective lessor of a hotel. The plaintiff lessee is referred to therein as the "purchaser" and the lessor as the "seller", the defendant being referred to as the broker. Material portions of the contract are as follows: "Purchaser has paid to the undersigned Ralph Boyd, broker, receipt of which is hereby acknowledged by such broker, $500.00 as earnest money, which earnest money is to be applied as part payment of purchase price of said property at the time sale is consummated. . . The real-estate broker negotiating this contract is made a party to this contract to enable broker to enforce his commission rights hereunder against the parties hereto on the following basis: . . If purchaser fails or refuses to consummate transaction for any reason except lack of marketable title in seller, purchaser shall pay real estate broker full real estate commission hereinafter provided, and in such event real estate broker shall apply earnest money deposited by purchaser toward payment of real estate commission, and turn balance thereof, if any, over to seller as liquidated damages of seller if seller claims balance as his liquidated damages; and thereupon broker is released from any and all liabilities for return of earnest money to purchaser. . . This contract constitutes the sole and entire agreement between the parties hereto and no modification of this contract shall be binding unless attached hereto and signed by all parties to this agreement. No representation, promise or inducement not included in this contract shall be binding upon any party hereto."

After setting out the contract, the petition continues as follows: "5. That defendant agreed with petitioner that the said agreement, attached hereto as Exhibit A, would not be binding upon her if the contract for the sale of her home on Somerset Terrace did not materialize, and agreed to hold petitioner's check in the amount of $500.00, which she gave to him at the time of the execution of the said agreement, pending the sale of petitioner's home, as aforesaid. 6. That notwithstanding said conditional agreement and his promise to hold petitioner's check, as aforesaid, defendant cashed petitioner's check and had used the proceeds of same for his own use and benefit." By amendment it is alleged that the contract for the sale of the plaintiff's home did not materialize, for which reason the contract above referred to never became operative.

A general demurrer to the petition was sustained and the petition was dismissed. The exception is to this ruling.

TOWNSEND, J. (After stating the foregoing facts.)

1. Code § 38-501 provides as follows: "Parol contemporaneous evidence is inadmissible generally to contradict or vary the terms of a valid written instrument." The contract here, which is absolute and complete upon its face, provides in unambiguous terms that the plaintiff is liable to the defendant for his broker's commission, to be taken out of the earnest money paid over to him, unless the seller fails to furnish good title to the premises. It is not alleged that the seller (that is, the lessor) defaulted in any way, but on the contrary it is alleged that the plaintiff was unable to go through with the contract because, having failed to sell another house, she did not have the money to put into the venture. The plaintiff then alleges, however, that the contract, although absolute on its face with the exception above noted, was not intended by the parties to be an absolute obligation on her part, but was, by a parol agreement, conditioned upon her selling her house and thus having the funds to invest in the hotel lease. She thus seeks to have an absolute obligation, imposed upon her under the contract, altered by parol to a conditional obligation directly contradicting the provisions of the contract itself. In Planters' Bank v. Brown, 22 Ga. App. 495 (1) ( 96 S.E. 328), it is held as follows: "The general rule which ordinarily permits the consideration of a written contract to be inquired into where the controversy is between the original parties does not authorize the promissor to alter or deny the terms of the obligation, and thereby convert an unconditional promise into one which is dependent upon the happening of contingencies. Dinkler v. Baer, 92 Ga. 432 (3) ( 17 S.E. 953); Byrd v. Marietta Fertilizer Co., 127 Ga. 30 ( 56 S.E. 86); Rheney v. Anderson, 22 Ga. App. 417 ( 96 S.E. 217)." As stated in Floyd v. Taylor Cotton Co., 26 Ga. App. 96 (1) ( 105 S.E. 646): "A contract in writing cannot be changed into a conditional obligation by parol, in the absence of fraud, accident or mistake. See Haley v. Evans, 60 Ga. 157 (2)." And in Johnson v. Cobb, 100 Ga. 139 (1) ( 28 S.E. 72): "A demurrer to the plea of a defendant in an action on a promissory note, which plea sets up a parol contract made before the execution of the note, by the terms of which the note was not to be paid in a certain event, was properly sustained." See also Dixon Co. v. Bank of Quitman, 23 Ga. App. 279 (2) ( 98 S.E. 112).

The contention of the plaintiff is that the contract of lease set up in the petition never came into existence because it depended upon a condition precedent, i.e., that she first sell her house, which condition failed, and that she is entitled to show these facts by parol evidence, citing Equitable Mfg. Co. v. Hill-Atkinson Co., 17 Ga. App. 494 (3) ( 87 S.E. 715), Heitmann v. Commercial Bank, 6 Ga. App. 584 ( 65 S.E. 590), and Hartman Stock Farm v. Henley, 8 Ga. App. 255 ( 68 S.E. 957). In those and similar cases it was held that parol evidence is admissible to show that the contract was never fully executed or delivered or was not intended to become a completed contract until certain prerequisites had been complied with. In the first of these cases, examination of the original record reveals that the seller undertook in the sale contract to repurchase the property if it could not be sold at a profit; the purchaser stated he would sign the contract provided the seller put up a bond to fulfill his obligations in this regard, and it was then agreed that the seller should make the bond and recite this fact in the contract, upon his doing which it would become effective. The seller, having to fulfill his obligation in this regard, was held not entitled to recover on the contract. In the other cases above cited, the defendant signed the note on an understanding that the instrument would not be deemed executed until other signatures in addition to his own were obtained thereon. These cases deal with agreements that the delivery or operation of the instrument would become effective upon the performance of some act by the opposite party which would complete the execution of the instrument. We are cited to no case where the promissor, having made an unconditional promise in writing, may avoid the instrument and the legal effect of the promissor's acts thereunder (such as, in this case, the payment of earnest money) by the contention that the promise was intended to be conditioned upon some further act on the part of the promissor which he did not or could not accomplish. This is especially true where the contract recites that no promise or representation not included therein shall be binding on any party thereto.

The trial court did not err in sustaining the general demurrer and dismissing the petition.

Judgment affirmed. Gardner, P.J., and Carlisle, J., concur.