Opinion
35865.
DECIDED JANUARY 10, 1956.
Trover. Before Judge Whaley. Dodge Superior Court. June 22, 1955.
D. D. Smith, for plaintiff in error.
A. R. Ross, Claude R. Ross, Edwin W. Ross, contra.
1. Where, from the allegations of a petition in an action in trover, it appears that the defendant, at the time of the institution of the suit, has title, possession, and right of possession of the personalty sought to be recovered, the petition fails to state a cause of action, and is subject to general demurrer.
2. "One having the capacity and opportunity to read a written contract, and who signs it, not under any emergency, and whose signature is not obtained by any trick or artifice of the other party, can not afterwards set up fraud in the procurement of his signature to the instrument."
DECIDED JANUARY 10, 1956.
On November 18, 1954, Paul Hambrick filed an action of trover against W. O. Bedsole, Sr., and on June 17, 1955, amended his petition. The material allegations of the petition, as finally amended, are substantially as follows. The defendant is illegally and wrongfully in possession of certain personal property of the total value of $2,585.50 to which the plaintiff claims title. In an exhibit attached to and made a part of the petition, the plaintiff has itemized and evaluated each piece of property and further describes the property as being the same property which the defendant removed from the plaintiff's premises on November 4 and 5, 1954, and carried to the defendant's domicile. The defendant refuses to deliver the described property to the plaintiff or to pay him the profits thereof. The yearly value of the property is $500. The defendant illegally and wrongfully acquired possession of the property from the plaintiff due to an actual fraud and deception perpetrated upon the plaintiff by the defendant. The plaintiff is the owner of certain described land and personal property located in Dodge County, Georgia. Sometime during the summer of 1954, the plaintiff, in the presence of the defendant, expressed a desire to sell the property.
The defendant stated and suggested to the plaintiff that he could sell the property for him. As a result of this conversation the plaintiff agreed with the defendant that he would sell the property to the defendant for the sum of $25,000 and would grant him until midnight of January 1, 1955, to pay the purchase price and receive proper conveyance of title, and the plaintiff and the defendant on August 31, 1954, entered into a written contract governing the transaction, a copy of which is attached to and made a part of the petition. According to the plaintiff's best knowledge and belief, it was the purpose and intention of the defendant to find a purchaser for the property, and the plaintiff bases this opinion upon statements made to him by the defendant from time to time. Several weeks elapsed after the execution of the contract during which time nothing further was done concerning the consummation of the proposed purchase on the part of the defendant. A few days prior to November 2, 1954, the defendant came to the plaintiff's home and told him that he could sell the property for $25,000 but stated that, if he did, it would not leave him any profit or compensation on the transaction. The defendant also stated that he could sell the farm or timber land, comprising 330 acres, for $60 and acre, but that he could not sell the 23 acres, more or less, on which the plaintiff's residence was situated, and he suggested to the plaintiff that they revise or modify their agreement so that the latter-mentioned land, including the residence, the personalty in the residence, and certain other personalty, would be eliminated from the operation of the original contract. The defendant, in the conversation just related, assured the plaintiff that, if he would eliminate the 23-acre tract and the personalty, he had the 330 acres remaining sold for the sum of $19,800 and that he would close the deal at that figure within the next day or so when the plaintiff would receive that sum. This representation on the part of the defendant was false and fraudulent and was a deception, artifice, and trick used by the defendant to induce and persuade the plaintiff to sign the modification agreement to the original contract and to induce the plaintiff to deliver to the defendant the property for which this action is brought. The modification agreement is attached to and made a part of the petition. Following the signing of the modification agreement on November 2, 1954, the defendant, on November 4 and 5, 1954, removed the personalty described in the modification agreement as the defendant's compensation for his services in selling the property from the plaintiff's premises. The plaintiff assisted the defendant in removing the personalty in the belief that within a day or two from the signing of the modification agreement he would receive the $19,800 for the remainder of his property as the defendant had assured him he would. Although more than a day or two has elapsed since the signing of the modification agreement, the plaintiff has not received anything whatsoever for his property, but, on the contrary is now out of possession of the described personalty for which he has received no consideration. Because of the fraud perpetrated upon the plaintiff by the defendant in making the false representations, the defendant did not acquire title to the personalty removed from the plaintiff's premises, but is in unlawful possession of it. Prior to bringing this suit the plaintiff demanded of the defendant that he either return all of the personal property which he had removed from the plaintiff's premises or that he pay the plaintiff the $19,800 agreed upon as the price of the remaining realty and personalty and the defendant has declined and refused to do either. Because of the fraud perpetrated upon the plaintiff by the defendant, the modification agreement is void and of no force and effect whatsoever.
The material provisions of the original contract between the plaintiff and the defendant are as follows:
"This agreement made and entered into this 31st day of August, 1954, by and between Paul Hambrick, . . . party of the first part, and W. O. Bedsole, Sr., . . . party of the second part. Witnesseth: That where as the party of the first part is the owner of a farm home and certain farm and timber lands, and also tractors, vehicles, power saws, tools, machinery, farm equipment, livestock, poultry, and equipment, which he desires to sell, and which second party desires to purchase, and the parties having agreed upon a price and terms for a sale and purchase of same, it is agreed: That for and in consideration of the sum of $1 and other consideration this day paid to first party by second party, receipt of which is hereby acknowledged, first party agrees to sell, and second party agrees to purchase all of said property as now located, and as is, which is more fully described in a schedule hereto attached and made a part hereof, at and for the sum of $25,000 which is to be paid in cash before midnight of January 1, 1955, and upon payment of said sum to first party within said period, first party will execute and deliver to second party a deed of general warranty to second party conveying fee-simple title to said property free and clear of all liens and encumbrances, and deliver full, complete, and quiet possession thereof to second party, subject only to a lease for turpentine purposes on a portion of said lands made by first party to Colly Keen on December 1, 1952, . . Second party shall have from date hereof until midnight of January 1, 1955, to pay the balance of the purchase money herein agreed upon, and upon payment of same within that period, first party is bound to convey said property to second party and deliver possession."
The material provisions of the modification agreement between the plaintiff and the defendant are as follows: "This modification agreement made and entered into this the 2nd day of November, 1954, by and between W. O. Bedsole and Paul Hambrick, both of said State and county, it being the intention of the parties by this agreement to modify to the extent herein stated the agreement heretofore entered into between the parties on August 31, 1954, . . . the same being incorporated herein by reference thereto. Witnesseth: Whereas, it is the desire of Hambrick that a certain part of the realty and personalty described in said contract heretofore made between the parties hereto be excepted from the operation of said contract. Now, in consideration of the granting and conveying by Hambrick to Bedsole of all personalty described in the schedule of said contract heretofore executed between the parties hereto, except that which is hereinafter excepted out to be reserved by said Hambrick. Bedsole hereby releases from the operation of said contract heretofore executed the following described property to be retained by said Hambrick: . . . [Here a description is given of 23 acres of land on which Hambrick's home is located and various items of personalty are enumerated.] The original price agreed on by the parties hereto in said contract . . . was $25,000. It is agreed by the parties hereto that the releasing from the operation of said contract the above described realty and personalty to Hambrick will diminish the original price to Bedsole in the sum of $5,200 if said Bedsole elects to retain the balance of the real property described in said original agreement. That is, Bedsole can now elect either to pay Hambrick the sum of $19,800 and retain the balance of the real property described in said original contract, that is all of said real property less the amount excepted out by this modification agreement, or he can instead of paying Hambrick $19,800, release the balance of said real estate to Hambrick either of which said elections will be a full discharge of all of Bedsole's obligations under said original contract. It is further agreed that Bedsole will have a period of 30 days from date hereof to remove the personalty herein granted and conveyed to him by Hambrick from the premises where now located. In the meantime and until such removal by Bedsole, Hambrick may retain the eggs produced by the chickens, provided he feeds the chickens until such time of removal. It is further agreed and understood that Hambrick may retain as his, 50 of said chickens, to be selected by him."
The trial court sustained a general demurrer to the petition, as amended, and the plaintiff assigns error in this court upon that judgment.
1. By the terms of the written contract into which Hambrick and Bedsole entered on August 31, 1954, title to the described realty and the described personalty located thereon was not to pass and delivery of possession was not to be made until Bedsole paid the purchase price of $25,000, and Hambrick executed a general warranty deed to the property to Bedsole, who was given until midnight of January 1, 1955, to make payment. The contract was a mere executory agreement to sell and did not constitute a sale. Code § 20-102; Clark v. Wood, 39 Ga. App. 340, 342 ( 147 S.E. 173), and citations; Gibson v. Needham, 96 Ga. 172 ( 22 S.E. 702). Bedsole gained by the contract neither title to, nor the right of possession of, either the realty or the personalty located thereon.
By the terms of the written modification agreement into which Hambrick and Bedsole entered on November 2, 1954, it was agreed that a tract of 23 acres of land on which Hambrick's home was located and enumerated items of personalty would be excluded from the operation of the original contract and that this exclusion would reduce the original contract by $5,200; that the remainder of the personalty enumerated in the original contract could be removed from the premises by Bedsole within 30 days from the date of the modification agreement, or by December 2, 1954; that Bedsole could elect to pay Hambrick the sum of $19,800 for the remainder of the realty and personalty, or he could elect to release the remainder of the realty and personalty to Hambrick, either of which elections would be a full discharge of Bedsole's obligations under the original contract.
The effect of the modification agreement was to preclude Bedsole's insisting upon his right to purchase the entire property, a right which he held under the original contract; to exclude the designated portions of the realty and personalty in the modification agreement from the operation of the original contract; to pass title and right of possession to Bedsole to the personalty designated in the modification agreement, if he removed it from the premises by December 2, 1954; and to give Bedsole an option to purchase the remaining realty and personalty for $19,800. The petition alleges that the designated personalty was removed from the premises by Bedsole, with Hambrick's assistance, on November 4 and 5, 1954.
Hambrick contends that there was no consideration for the modification agreement and the personalty was obtained by fraud. With those contentions the court cannot agree.
By the agreement in writing into which they entered on November 2, 1954, the terms of the original contract were modified "to the extent herein stated." The consideration for the modification agreement is recited as follows: "Whereas, it is the desire of Hambrick that a certain part of the realty and personalty described in said contract heretofore made between the parties be excepted from the operation of the said contract, now, in consideration of the granting and conveying by Hambrick to Bedsole of all personalty described in the schedule of said contract heretofore executed between the parties hereto, except that which is hereinafter excepted out to be reserved by said Hambrick, Bedsole hereby releases from the operation of said contract heretofore executed the following described property to be retained by said Hambrick. . ." There follows a description of certain realty and personalty released to Hambrick. The personalty designated in the original contract which was not released to Hambrick constituted the recited consideration for the release of the realty and personalty described in the modification agreement.
"It has . . . been uniformly held that one is not precluded from showing by parol that the real consideration of a contract is in fact different from the one actually recited in the instrument, for the purpose of proving that what is thus shown to be the true consideration has failed [citing cases]. . . The rule just stated is, however, applicable only to contracts in which the consideration is thus stated by way of mere recital; for if it be so expressed as to constitute it one of the terms and conditions of the agreement it is not permissible to set up another and different consideration for the purpose of showing a failure of the latter." Rheney v. Anderson, 22 Ga. App. 417 ( 96 S.E. 217), the special concurrence of Jenkins, J.
In construing the clause of the modification agreement which we have quoted above, we think the words, "Whereas, it is the desire of Hambrick that a certain part of the realty and personalty described in said contract heretofore made between the parties hereto be excepted from the operation of said contract," are words of recital only, but that the words immediately following, "Now, in consideration of the granting and conveying by Hambrick to Bedsole of all personalty described," etc., constitute a term and condition of the modification agreement. Since this is so, Hambrick cannot, under the rule that parol evidence is not admissible to alter or vary the words of a written instrument, plead and prove that the personalty mentioned in the modification agreement was not intended to be the consideration for the release of certain other realty and personalty from the terms of the original contract to sell. This provision of the contract is unambiguous and Hambrick makes no contention in his petition that it is otherwise. A subsequent independent covenant of the modification agreement further releases certain realty and personalty from the provisions of the original executory contract to sell in that it relieves Bedsole of his obligation to buy and gives him an option to purchase, which is, of course, a benefit to Bedsole, but this benefit is not made a specific consideration for Bedsole's entering into the modification agreement, whereas the transfer by Hambrick to Bedsole of the designated personalty is specifically stated to be the consideration for the modification agreement and therefore a term and condition of the agreement independently of whether or not Bedsole elects to purchase the remaining realty and personalty. It cannot, therefore, be said as a matter of law, that the benefit of the option provision accruing to Bedsole constitutes the sole consideration for the modification agreement and that, if he elected not to purchase, he would not be entitled to the personal property in consideration for which he released other realty and personalty from the operation of the original contract, and the plaintiff, Hambrick, cannot in his petition contradict the unambiguous provisions of the modification agreement as he attempts to do.
A further indication that title to the personal property passed to Bedsole is that the original contract, under the terms of the modification agreement, is still in force and effect except as modified; under the original agreement Bedsole had until January 1, 1955, to complete the purchase and receive his deed; under the modification agreement Bedsole had an option to purchase the property, but as no time limit was set for the exercise of the option, the terms of the original agreement requiring that the transaction be completed by January 1, 1955, remained in effect and Bedsole had until that time within which to exercise the option; however, he had only until December 2, 1954, to remove the personal property conveyed to him in consideration for the modification agreement. It is, therefore, manifest from the agreements that it was not the intention of the parties that Bedsole's title to the personalty was to be dependent upon his purchase of the remaining realty and personalty. Accordingly, the court is of the opinion that title to the personalty, for which the present action of trover is brought, passed to Bedsole, that his possession was lawful, that the consideration for the conveyance was that expressed in the modification agreement; that this consideration did not fail, and that in the absence of fraud, the plaintiff, Hambrick, cannot plead and prove that this was not in fact a valid consideration.
"It may be stated that as a general rule the plaintiff in an action of trover must show title, either general or special in himself at the time of the institution of the suit, actual possession, or right of immediate possession." Livingston v. Epstein-Roberts Co., 50 Ga. App. 25, 27 ( 177 S.E. 79), and the numerous cases there cited. The petition showed title, possession, and right of possession in Bedsole at the time of the institution of the present action in trover, and the trial court, consequently, in the absence of any showing of fraud, did not err in sustaining the general demurrer thereto.
2. The petition failed to show fraud such as to void two writings. "`One having the capacity and opportunity to read a written contract, and who signs it, not under any emergency and whose signature is not obtained by any trick or artifice of the other party, can not afterwards set up fraud in the procurement of his signature to the instrument.' Truitt-Silvey Hat Co. v. Callaway Truitt, 130 Ga. 637 ( 61 S.E. 481); Lewis v. Foy, 189 Ga. 596 ( 6 S.E.2d 788)." West v. Carolina Housing Mortgage Corp., 211 Ga. 789 ( 89 S.E.2d 188).
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.