Opinion
44392.
ARGUED APRIL 9, 1969.
DECIDED APRIL 24, 1969.
Action for broker's commission. Bulloch Superior Court. Before Judge Usher.
Allen Edenfield, Francis W. Allen, Jim Franklin, for appellant.
Neville Neville, William J. Neville, G. Leonard Liggin, for appellee.
An unconditional promise to pay cannot be converted into a conditional promise by pleading or proof of a contemporaneous oral agreement to do so.
ARGUED APRIL 9, 1969 — DECIDED APRIL 24, 1969.
Buford W. Knight engaged the services of William J. Summerlin d/b/a William Summerlin Company in selling Knight Village, a real estate development; and when negotiations for its sale had proceeded to a point shortly before closing, a written contract in the form of a letter from Summerlin to Knight, duly accepted and assented to by Knight in writing, as to the compensation to be paid Summerlin, was entered into as follows:
"April 14, 1967. "Mr. Buford W. Knight B. W. Knight Construction Company P. O. Box 128 Statesboro, Georgia 30458. Re: Knight Village, Statesboro, Georgia Dear Buford:"In line with your request that I prepare a letter outlining our verbal agreement and your instructions to me on Saturday, March 4, 1967, the following will constitute our contract for your Statesboro, Georgia property.
"You agree to pay me $25,000 for consultation and my help to you in arranging the sale of Knight Village, which amount will be earned upon consummation of the current proposed contract to Town and Campus of Statesboro, Inc. (Harry D. Sheer, President and William Koman, Vice-President), or others. However, the $25,000 will be paid as follows: $5,000 at closing and the remaining $20,000 in annual instalments of $5,000 each, due January 15, 1968, January 15, 1969, January 15, 1970 and January 15, 1971, respectively.
"Please sign below to indicate your agreement to the foregoing and return the original of this letter to me. The copy is for your file.
"Many thanks for the opportunity to work with you, and with best wishes, Sincerely yours, /s/ William J. Summerlin.
"I have this 14th day of April, 1967 read and hereby agree to the above as stated. /s/ Buford W. Knight."
It appears that the sale was completed April 20, 1967, and on July 25, 1967, Knight paid to Summerlin the sum of $1,000, being a part of the instalment due on closing under the contract. No other payments were made, and on July 19, 1968, Summerlin filed suit against Knight to recover $9,000, representing the balance of the $5,000 due on closing and the instalment due January 15, 1968.
Defendant answered, admitting the contract, admitting that the sale had been closed April 20, 1967, and admitting owing a balance of $4,000 on the instalment which was to have been paid on closing, but denied any further indebtedness by reason of an oral contemporaneous agreement that the remaining instalments were to be paid only if the purchaser was current in all of its obligations to defendant and to First Federal Savings Loan Association of Savannah, the holder of a prior security deed which defendant had executed to it, the purchaser having assumed payment of the indebtedness secured thereby. He alleged that the purchaser defaulted in its payments to First Federal Savings Loan Association in July, 1967, and that it defaulted in its obligations to the defendant, secured by a second security deed dated May 20, 1967, as a result of which it became necessary for defendant to negotiate a repurchase of the property in order to avoid a foreclosure, and that he did repurchase it July 25, 1967.
Plaintiff thereupon amended his complaint and sought recovery of the entire balance under the contract.
Defendant amended his answer alleging that there had been a failure of consideration in that the purchaser had failed to perform its obligations in making payments to the First Federal Savings Loan Association and to him.
Plaintiff moved to strike all of the defense by which defendant attempted to set up an oral contemporaneous agreement making his obligation under the contract conditional upon the performance by the purchaser of its obligations, which the court sustained, but certified that the ruling was of such importance to the case that immediate review should be had, as provided by Code Ann. § 6-701 (2), and defendant appeals.
By his written acceptance of the letter Knight assumed an unconditional obligation to pay a definite sum of money at definite times. He may not engraft upon it a provision converting the unconditional contract to pay into a conditional obligation by pleading a contemporaneous oral agreement to that effect. Lee v. Garland, 208 Ga. 251 ( 66 S.E.2d 223); Johnson v. Cobb, 100 Ga. 139, 141 ( 28 S.E. 72); Mansfield v. Barber, 59 Ga. 851; Mason v. Blayton, 119 Ga. App. 203 ( 166 S.E.2d 601). Nor could the alleged contemporaneous oral agreement be proven. Bullard v. Brewer, 118 Ga. 918 ( 45 S.E. 711); Brewer v. Grogan, 116 Ga. 60 ( 42 S.E. 525); Stapleton v. Monroe, 111 Ga. 848 ( 36 S.E. 428); Sasser v. McGovern, 11 Ga. App. 88, 89 ( 74 S.E. 797); Matthews Sons v. Richards, 13 Ga. App. 412, 413 ( 79 S.E. 227); Tennille Banking Co. v. Ward, 29 Ga. App. 660 (2) ( 116 S.E. 347).
Aliter if the contemporaneous agreement had been in writing. Martin v. Monroe, 107 Ga. 330 (3) ( 33 S.E. 62); Arnold v. Johnston, 84 Ga. App. 138 ( 65 S.E.2d 707); Jones v. Darling, 94 Ga. App. 641 ( 95 S.E.2d 709).
What we hold here is in no wise conflicting with Langenback v. Mays, 205 Ga. 706 ( 54 S.E.2d 401, 11 ALR2d 1221), for here the agreement which defendant pleads is in direct conflict with the terms of the written contract. It seeks to make conditional and uncertain that which is unconditional and certain. There could hardly be a more direct conflict in the terms. In Langenback the agreement not to engage in a competitive tourist business was, as the Supreme Court held, not in conflict with or contrary to the provisions of the deed by which the seller had conveyed a tourist court to the purchaser.
The defense which defendant set up by his answer was impermissible and the sustaining of plaintiff's motion to strike was was proper. Code Ann. § 81A-112 (f).
Judgment affirmed. Bell, P. J., and Deen, J., concur.