P. & O. MacHine Works, Inc. v. Pollard

115 Ga. App. 96 (1967)

153 S.E.2d 631

P. & O. MACHINE WORKS, INC. v. POLLARD.

42497.

Court of Appeals of Georgia.

Submitted January 9, 1967.

Decided January 25, 1967.

Richard T. Cowan, for appellant.

Robert E. Falligant, Jr., for appellee.

DEEN, Judge.

1. While parol evidence, even though admitted without objection, of agreements and stipulations made prior to the execution of the written instrument has no probative value so as to alter or vary its terms (Cleghorn v. Shields, 165 Ga. 362 (141 SE 55)), parol evidence is admissible to prove a new and distinct subsequent agreement (Code § 38-507) or modification of the original agreement (Covington v. Brewer, 101 Ga. App. 724 (115 SE2d 368)), provided it is supported by a consideration. Wimberly v. Tanner, 34 Ga. App. 313 (1) (129 SE 306); Collier Estate v. Murray, 145 Ga. 851 (1) (90 SE 52); Long Tobacco Harvesting Co. v. Brannen, 98 Ga. App. 142, 149 (105 SE2d 390).

2. Plaintiff sold the defendant a business, the bill of sale including "all assets" and "all materials in stock." There were at the time physically on the premises certain materials *97 which had been specially ordered by the seller for fabrication into splined shafts to be made to the specifications of Owens-Richards Company, a purchaser, and which materials were not regularly kept in stock. This order and others were incomplete at the time of the sale of the business. According to the testimony of the plaintiff and another witness, it was agreed by the parties that the seller would remain on until he had completed the pending contracts. He remained for about a month, finishing 25 or 30 contracts. It became apparent to him that he would be unable to finish the Owen-Richards contract by the time shafts were demanded; he thereupon entered into a parol agreement with the defendant's agent that the defendant would complete the contract, collect for the job, and pay plaintiff for the shafts $220.74, the purchase price of the material to him.

This testimony, accepted as true by the court trying the case without a jury, authorized a judgment in favor of the plaintiff for the value of the material as against the contention that it was an attempt to vary the terms of a written instrument by parol.

Judgment affirmed. Frankum, P. J., and Quillian, J., concur.