O.C.G.A. § 24-3-3 (2019)

Annotations

Law reviews. For article, “Supplementing Written

Agreements: Restating the Parol Evidence Rule in Terms of Credibility and Relative Fault,” see 34 Emory L.J. 93 (1985).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION WRITINGS EXPLAINING EACH OTHER WRITINGS IN REAL ESTATE TRANSACTIONS General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1863, § 3724, former Code 1868, § 3748, former Code 1873, § 3801, former Code 1882, § 3801, former Civil Code 1895, § 5202, former Civil Code 1910, § 5789, former Code

1933, § 38-502, and former O.C.G.A. § 24-6-3 are included in the annotations for this Code section. Parol evidence is admissible to explain an ambiguity in a writing. CheroCola Bottling Co. v. Southern Express Co., 29 Ga. App. 656, 116 S.E. 325, 1923 Ga. App. LEXIS 153 (1923) (decided under

General Consideration (Cont’d) former Civil Code 1910, § 5789); Commercial Credit Co. v. Lewis, 59 Ga. App. 144, 200 S.E. 566, 1938 Ga. App. LEXIS 459 (1938) (decided under former Code 1933, § 38-502); Hanson v. Stern, 102 Ga. App. 341, 116 S.E.2d 237, 1960 Ga. App. LEXIS 619 (1960) (decided under former Code 1933, § 38-502); R.C. Craig, Ltd. v. Ships of Sea, Inc., 401 F. Supp. 1051, 1975 U.S. Dist. LEXIS 16053 (S.D. Ga. 1975); (decided under former Code 1933, § 38502); Fruin-Colnon Corp. v. Air Door, Inc., 157 Ga. App. 804, 278 S.E.2d 708, 1981 Ga. App. LEXIS 2016 (1981) (decided under former Code 1933, § 38-502). Parol evidence is admissible to explain an ambiguity in a written contract, although such evidence is inadmissible to add to, take from, or vary the writing itself. Andrews v. Skinner, 158 Ga. App. 229, 279 S.E.2d 523, 1981 Ga. App. LEXIS 2139 (1981) (decided under former Code 1933, § 38-502). If parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements is inadmissible to add to, take from, or vary the written instrument. Andrews v. Skinner, 158 Ga. App. 229, 279 S.E.2d 523, 1981 Ga. App. LEXIS 2139 (1981) (decided under former Code 1933, § 38-502). One writing purports to contain the entire understanding. - Contemporaneous writings should be considered even if one of the writings purports to contain the entire understanding of the parties in the transaction contemplated and even if the writings are not cross-referenced. Duke v. KHD Deutz of Am. Corp., 221 Ga. App. 452, 471 S.E.2d 537 (decided under former O.C.G.A. § 24-6-3). Abbreviations. - When a writing is obscure or ambiguous, by reason of an unfamiliar abbreviation, what it means is for the jury and to arrive at the meaning, clear and intelligible expressions in the instrument may be compared with facts otherwise proved. Holland v. Long & Bro.,

57 Ga. 36, 1876 Ga. LEXIS 14 (1876) (decided under former Code 1873, § 3801). Letters “O.K.” being ambiguous, their meaning may be explained by parol evidence. Penn Tobacco Co. v. Leman & Co., 109 Ga. 428, 34 S.E. 679, 1899 Ga. LEXIS 671 (1899) (decided under former Civil Code 1895, § 5202). Capacity of signer. - When there is a written contract, not under seal and not containing a so-called integration or “entire agreement” clause, parol is admissible to show the capacity in which one signed such agreement. Evans v. Smithdeal, 143 Ga. App. 287, 238 S.E.2d 278, 1977 Ga. App. LEXIS 2290 (1977) (decided under former Code 1933, § 38502). Jury question. - As a general rule, the construction of a contract is a question for the court; but if the terms of a written instrument are ambiguous, the contract’s meaning should be left to the jury. Illges v. Dexter, 77 Ga. 36, 1886 Ga. LEXIS 275 (1886) (decided under former Code 1882, § 3801). Contracts, even when ambiguous, are to be construed by the court and no jury question is presented unless after application of applicable rules of construction an ambiguity remains. Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga. App. 874, 285 S.E.2d 566, 1981 Ga. App. LEXIS 2912 (1981) (decided under former O.C.G.A. § 24-6-3). Writings Explaining Each Other Affidavits admissible. - Summary judgment was proper and parol evidence was admissible to show the meaning of a separation agreement when a former wife’s affidavits established that four certificates of deposit were purchased with the proceeds from the sale of her premarital property and were her separate property and decedent husband’s redemption of one of the CD’s was in contravention of their separation agreement. Bradley v. Frank, 264 Ga. App. 772, 592 S.E.2d 138, 2003 Ga. App. LEXIS 1485 (2003), cert. denied, No. S04C0709, 2004 Ga. LEXIS 367 (Ga. Apr. 27, 2004) (decided under former O.C.G.A. § 24-6-3). Contract is not necessarily contained in a single paper, and law pro-

vides that all contemporaneous writings shall be admissible to explain each other. Manry v. Hendricks, 66 Ga. App. 442, 18 S.E.2d 97, 1941 Ga. App. LEXIS 531 (1941) (decided under former Code 1933, § 38-502). Legal effect of two writings. - If it takes both writings to make the real contract of the parties, the legal effect is the same as if one paper held the contents of the note and the contemporaneous writing. Jewell v. Norrell, 66 Ga. App. 11, 16 S.E.2d 797, 1941 Ga. App. LEXIS 94 (1941) (decided under former Code 1933, § 38-502). Terms of contract cannot be varied by parol. - When a written contract is expressly entered into on terms and conditions expressed and stated in two papers which constituted but one entire written contract, a party cannot change such terms and conditions in the written contract and set up terms and conditions by parol which are contrary to the written terms. Jewell v. Norrell, 66 Ga. App. 11, 16 S.E.2d 797, 1941 Ga. App. LEXIS 94 (1941) (decided under former Code 1933, § 38-502). “Contemporaneous” means, literally, according to Webster, “living, existing, or occurring at the same time,” but numerous authorities could be cited to the effect that the word does not connote perfect or absolute coincidence in point of time. One thing is contemporaneous with a given transaction when it is so related in point of time as reasonably to be said to be a part of such transaction. Manry v. Hendricks, 66 Ga. App. 442, 18 S.E.2d 97, 1941 Ga. App. LEXIS 531 (1941) (decided under former Code 1933, § 38-502). Letters to explain note. - When a promissory note did not express within itself the entire contract between the parties, but the remainder thereof was contained in letters written by the parties in connection with the making of the note, such letters were admissible in evidence in a suit between the maker and one who took the note after maturity. Marietta Sav. Bank v. Janes, 66 Ga. 286, 1881 Ga. LEXIS 6 (1881) (decided under former Code 1873, § 3801). Documents properly construed together. - Trial court correctly evaluated an asset purchase agreement between a

buyer and the owners of a dialysis center, including a doctor’s spouse, a covenant not to compete, and a medical director agreement between a doctor and a buyer, all signed the same day, together under former O.C.G.A. § 24-6-3 as related to the sale of a business as the doctor was integral to the continued success of the center, and the doctor’s execution of the medical director agreement was integral to the execution of the asset purchase agreement. Martinez v. DaVita, Inc., 266 Ga. App. 723, 598 S.E.2d 334, 2004 Ga. App. LEXIS 361 (2004) (decided under former O.C.G.A. § 24-6-3). In a breach of contract action arising from a guaranty agreement between a guarantor and a retail space owner, the trial court properly granted summary judgment in the owner’s favor as the court properly construed contemporaneous written agreements, which were executed on the same date, at the same time, and at the same location, despite a misnomer contained therein, as such did not render the agreement unenforceable. Thus, it was not erroneous for the court to correct an obvious error in the agreement, specifically, the failure to substitute one entity’s name for another as the parties intended, and interpret the guaranty accordingly. C.L.D.F., Inc. v. Aramore, LLC, 290 Ga. App. 271, 659 S.E.2d 695, 2008 Ga. App. LEXIS 300 (2008), cert. denied, No. S08C1224, 2008 Ga. LEXIS 668 (Ga. Sept. 8, 2008) (decided under former O.C.G.A. § 24-6-3). As the evidence supported a finding that the defendant freely and voluntarily consented to a special condition in a bond, allowing a warrantless search of the defendant’s residence, denial of suppression with respect to drugs and a handgun seized during the search was proper as was the finding that the defendant had waived rights under U.S. Const., amend. IV; the special condition form was considered along with the bond order as the documents had been executed contemporaneously pursuant to former O.C.G.A. § 24-6-3(a). Curry v. State, 309 Ga. App. 338, 711 S.E.2d 314, 2011 Ga. App. LEXIS 316 (2011) (decided under former O.C.G.A. § 24-6-3). Trial court erred in granting a flea market operator and a property owner sum-

Writings Explaining Each Other (Cont’d) mary judgment in their slander of title action against a real estate investment firm and the estate of the firm’s sole member because there was a genuine issue of material fact as to whether the firm was a party to the sales contract entered into between the operator and the member since at the time the sales contract was executed contemporaneously with the promissory note and deed to secure debt, the member executed an affidavit of filing claiming specifically that the firm had a vested interest in the property pursuant to the sales contract; that affidavit was recorded along with the contract as an attachment, and the contemporaneous filings, considered together under former O.C.G.A. § 24-6-3, created an ambiguity as to whether the member signed the sales contract in a personal or corporate capacity. Shiva Mgmt., LLC v. Walker, 308 Ga. App. 878, 708 S.E.2d 710, 2011 Ga. App. LEXIS 302 (2011) (decided under former O.C.G.A. § 24-6-3). Statute of frauds did not bar a landlord’s claim on a guaranty because the guaranty identified the debt, and the assignment contemplated in the guaranty was documented by a written agreement; the guaranty and the assignment, along with an amendment, could be read together to determine whether the guaranty complied with the statute of frauds, and when read together the documents identified the principal debt as required by the statute of frauds. Patterson v. Bennett St. Props., 314 Ga. App. 896, 726 S.E.2d 147, 2012 Ga. App. LEXIS 299 (2012) (decided under former O.C.G.A. § 24-6-3). Contract for sale of coal. - When at the time of making a written contract for the sale of coal, the parties also executed a contemporaneous writing as to the kind of coal to be furnished, both writings should be considered together to determine the true intent of the parties. National Rosin Oil & Size Co. v. South Atl. Coal Co., 23 Ga. App. 87, 97 S.E. 559, 1918 Ga. App. LEXIS 53 (1918) (decided under former Civil Code 1910, § 5789). Pleading contemporaneous writings. - It is not intimated in law that in order for contemporaneous writings to be

admitted in evidence, even though the writings may govern and control the contract, the writings must be pled in the plaintiff’s petition. International Harvester Co. of Am. v. Morgan, 19 Ga. App. 716, 92 S.E. 35, 1917 Ga. App. LEXIS 325 (1917) (decided under former Civil Code 1910, § 5789). Contemporaneous writings need not be cross-referenced. - If all the necessary terms of an agreement are contained in signed contemporaneous writings, the statutory requirements and purpose of the statute of frauds have been met whether or not the writings are crossreferenced. Baker v. Jellibeans, Inc., 252 Ga. 458, 314 S.E.2d 874, 1984 Ga. LEXIS 735 (1984) (decided under former O.C.G.A. § 24-6-3); Harris v. Distinctive Builders, Inc., 249 Ga. App. 686, 549 S.E.2d 496, 2001 Ga. App. LEXIS 594 (2001), cert. dismissed, No. S01C1368, 2001 Ga. LEXIS 841 (Ga. Oct. 9, 2001) (decided under former O.C.G.A. § 24-6-3). Language clear and unambiguous may not be contradicted by parol evidence of custom, surrounding circumstances, or intent. Daniel & Daniel, Inc. v. Cosmopolitan Co., 146 Ga. App. 200, 245 S.E.2d 885, 1978 Ga. App. LEXIS 2211 (1978) (decided under former Code 1933, § 38-502). When the words and phrases are not technical nor in any sense ambiguous, a witness cannot, as an expert or otherwise, give the witness’s opinion of the meaning of the instrument. CheroCola Bottling Co. v. Southern Express Co., 29 Ga. App. 656, 116 S.E. 325, 1923 Ga. App. LEXIS 153 (1923) (decided under former Civil Code 1910, § 5789). Parol evidence inadmissible in unambiguous contract. - Rule that the construction put upon the contract by the parties before or after the contract’s execution may be considered in arriving at the contract’s true meaning does not apply to an unambiguous contract. Alexander Film Co. v. Brittain, 63 Ga. App. 384, 11 S.E.2d 66, 1940 Ga. App. LEXIS 105 (1940) (decided under former Code 1933, § 38-502). If the provisions of a deed to land are plain and unambiguous, parol evidence is not admissible for the purpose of showing

an intent at variance with the plain terms of the deed. Rowland v. Sumner, 201 Ga. 317, 39 S.E.2d 655, 1946 Ga. LEXIS 458 (1946) (decided under former Code 1933, § 38-502). In the absence of fraud, parol evidence is not admissible to overcome the express unambiguous language of a contract. Wilson v. Sheppard, 136 Ga. App. 475, 221 S.E.2d 671, 1975 Ga. App. LEXIS 1391 (1975) (decided under former Code 1933, § 38-502). Parol evidence cannot be employed to add to, take from, or vary the terms of the written instrument. R.C. Craig, Ltd. v. Ships of Sea, Inc., 401 F. Supp. 1051, 1975 U.S. Dist. LEXIS 16053 (S.D. Ga. 1975) (decided under former Code 1933, § 38502); Kellos v. Parker-Sharpe, Inc., 245 Ga. 130, 263 S.E.2d 138, 1980 Ga. LEXIS 1308, 1980 Ga. LEXIS 715 (1980) (decided under former Code 1933, § 38-502). When the contract is complete on the contract’s face and the evidence offered to explain the ambiguity contradicts the terms of the written instrument, parol evidence should not be admitted. American Cyanamid Co. v. Ring, 248 Ga. 673, 286 S.E.2d 1, 1982 Ga. LEXIS 1078 (1982) (decided under former O.C.G.A. § 24-6-3). “Ambiguity” defined. - “Ambiguity” is defined as duplicity, indistinctness, or an uncertainty of meaning or expression. Novelty Hat Mfg. Co. v. Wiseberg, 126 Ga. 800, 55 S.E. 923, 1906 Ga. LEXIS 547 (1906) (decided under former Civil Code 1895, § 5202); Wood v. Phoenix Ins. Co., 199 Ga. 461, 34 S.E.2d 688, 1945 Ga. LEXIS 337 (1945) (decided under former Code 1933, § 38-502). “Ambiguity” also signifies doubtful or uncertain nature; wanting clearness or definiteness; difficult to comprehend or distinguish; of doubtful purport; open to various interpretations. Novelty Hat Mfg. Co. v. Wiseberg, 126 Ga. 800, 55 S.E. 923, 1906 Ga. LEXIS 547 (1906) (decided under former Civil Code 1895, § 5202). Ambiguity refers to words or phrases of duplicitous, indistinct, or uncertain meanings which may fairly be understood in more ways than one. Contractors Mgt. Corp. v. McDowell-Kelley, Inc., 136 Ga. App. 116, 220 S.E.2d 473, 1975 Ga. App. LEXIS 1267 (1975) (decided under former Code 1933, § 38-502).

Intent of parties. - If a written contract is ambiguous as to the intention of the parties, evidence, otherwise competent, of acts and transactions between the parties, tending to show the construction the parties themselves put upon the agreement when the agreement was executed, whether occurring prior to or subsequently to the execution of the contract, is admissible. Armistead v. McGuire, 46 Ga. 232, 1872 Ga. LEXIS 40 (1872) (decided under former Code 1868, § 3748); Georgia Iron & Coal Co. v. Ocean Accident & Guar. Corp., 133 Ga. 326, 65 S.E. 775, 1909 Ga. LEXIS 210 (1909) (decided under former Civil Code 1895, § 5202). Even if the instrument is ambiguous, the testimony of one party as to that party’s intent, undisclosed to the other, is not competent. National Manufacture & Stores Corp. v. Dekle, 48 Ga. App. 515, 173 S.E. 408, 1934 Ga. App. LEXIS 116 (1934) (decided under former Code 1933, § 38502). If the language of the contract defining what interest the petitioners were buying is ambiguous, the court does not err in admitting testimony of the petitioners of what the petitioners thought the petitioners were buying. Manning v. Carroll, 204 Ga. 100, 48 S.E.2d 737, 1948 Ga. LEXIS 532 (1948) (decided under former Code 1933, § 38-502). Through the proper admission of parol evidence, the intent of the parties can be determined and any ambiguity present can be resolved by the jury in the trial. Wright v. Piedmont Eng’r & Constr. Corp., 106 Ga. App. 401, 126 S.E.2d 865, 1962 Ga. App. LEXIS 717 (1962) (decided under former Code 1933, § 38-502). If a release is ambiguous on the question of whether a plaintiff released a defendant from claims arising out of defendant’s relationship with a corporation, parol evidence may be introduced on the issue of the parties’ intent. Southern Stone Co. v. Singer, 665 F.2d 698, 1982 U.S. App. LEXIS 22700 (5th Cir. 1982) (decided under former O.C.G.A. § 24-6-3). Trial court was authorized to construe the commercial lease and the shareholder buyout agreements between a lessor and a lessee together as multiple documents executed during the course of a single trans-

Writings Explaining Each Other (Cont’d) action; in so doing, the court’s finding that the agreement was linked to the lease’s 10-year term upheld the contract as a whole, reflected the parties’ intent as expressed in the testimony and documentary evidence offered at trial, and was supported by all the attendant and surrounding circumstances proved in this case. Allen v. Harkness Stone Co., 271 Ga. App. 397, 609 S.E.2d 647, 2004 Ga. App. LEXIS 1626 (2004), cert. denied, No. S05C0901, 2005 Ga. LEXIS 393 (Ga. May 23, 2005) (decided under former O.C.G.A. § 24-6-3). Contract of goods over $50.00. - Law applies to a contract of goods over $50.00, even in view of the statute of frauds. Wilson v. Coleman & Ray, 81 Ga. 297, 6 S.E. 693, 1888 Ga. LEXIS 113 (1888) (decided under former Code 1882, § 3801). Contract with contradictory terms. - When a contract embodied in two separate written instruments, simultaneously executed and delivered, contains contradictory and ambiguous terms, parol evidence is admissible to explain the contradiction and remove the ambiguity. Cable Co. v. McFeeley, 7 Ga. App. 435, 66 S.E. 1103, 1910 Ga. App. LEXIS 331 (1910) (decided under former Civil Code 1895, § 5202). When the clause of sales contract referring to the amount of the purchase price is rendered ambiguous by contradictory statements as to the amount, the trial judge does not err in permitting defendant purchaser to testify, in explanation of the ambiguity, that at the time the defendant entered into the contract, the defendant had a conversation with the seller’s agent and that it was distinctly understood that the items of insurance, carrying charges, and interest were included. Wood v. Phoenix Ins. Co., 199 Ga. 461, 34 S.E.2d 688, 1945 Ga. LEXIS 337 (1945) (decided under former Code 1933, § 38-502). If a written contract incorporates an ambiguous condition, parol evidence is admissible to aid in the construction of the condition. Columbia Nitrogen Corp. v. Dean’s Power Oil Co., 136 Ga.

App. 879, 222 S.E.2d 602, 1975 Ga. App. LEXIS 1521 (1975) (decided under former Code 1933, § 38-502). Effect of “whole agreement” clause in contract. - If a contract is in fact ambiguous as to some matters, a stipulation in the contract to the effect that the contract expresses “the whole agreement” and that there is no agreement or modification of any kind in connection therewith that is not expressly set forth therein, will not prevent explanation in the usual manner. Wood v. Phoenix Ins. Co., 199 Ga. 461, 34 S.E.2d 688, 1945 Ga. LEXIS 337 (1945) (decided under former Code 1933, § 38502); Baker v. Jellibeans, Inc., 252 Ga. 458, 314 S.E.2d 874, 1984 Ga. LEXIS 735 (1984) (decided under former O.C.G.A. § 24-6-3). Descriptions in instruments. - If, for want of fullness of statement, the writing be indefinite or uncertain, parol evidence is admissible, not to vary, add to, or take from the writing, but to explain and so illuminate the writing as to make the real intention of the parties apparent. So parol evidence is admissible to explain ambiguous descriptive terms in a written instrument and to apply the same to their subject matter. Georgia Iron & Coal Co. v. Ocean Accident & Guar. Corp., 133 Ga. 326, 65 S.E. 775, 1909 Ga. LEXIS 210 (1909) (decided under former Civil Code 1895, § 5202); see also Walnut Creek Milling Co. v. Smith Bros. Co., 178 Ga. 341, 173 S.E. 95, 1934 Ga. LEXIS 52 (1934). Names. - When a grant was issued to a name and there was no such person, this made a case of latent ambiguity, and aliunde evidence was admissible to show who was the person meant. Bowen v. Slaughter, 24 Ga. 338, 1858 Ga. LEXIS 207 (1858) (decided under former law). It is admissible to apply, by parol testimony, the description given in an instrument so as to ascertain the particular person or persons intended to be embraced in that description. Indeed, parol evidence is admissible to explain all such ambiguities. Houston v. Bryan, 78 Ga. 181, 1 S.E. 252, 1886 Ga. LEXIS 203 (1886) (decided under former Code 1882, § 3801). Parol evidence admissible for goods. - Parol evidence was admissible to show that contract for sale of “Snoflour”

contemplated a grade of flour equal to another brand with which the vendee was familiar. Walnut Creek Milling Co. v. Smith Bros. Co., 178 Ga. 341, 173 S.E. 95, 1934 Ga. LEXIS 52 (1934) (decided under former Code 1933, § 38-502). Receipts. - Parol evidence was admissible to show whether the parties intended the receipt given to the defendant by the assignee of the leased contract, to be a settlement of all future liability of the defendants for rent, or was only meant as a discharge of whatever the assignee could claim by the transfer to them, and was not to affect the rights of the lessor under a reassignment of the lease to the lessor. Bell v. Boyd & Brumby, 53 Ga. 643, 1875 Ga. LEXIS 40 (1875) (decided under former Code 1873, § 3801). Whether a receipt of a promissory note amounts to the payment of a preexisting debt depends upon the intention of the parties. If such intention can be gathered with certainty from the papers themselves, resort need not be had to the attending circumstances. If the papers are ambiguous, parol evidence is admissible to establish intent. Hall’s Self-Feeding Cotton Gin Co. v. Black, 71 Ga. 450, 1883 Ga. LEXIS 196 (1883) (decided under former Code 1882, § 3801). Receipt in full given by the administrator de bonis non with the will annexed, to the administratrix of the deceased executor, was open to explanation in view of the parol evidence rule. Watts v. Baker, 78 Ga. 622, 3 S.E. 773, 1887 Ga. LEXIS 41 (1887) (decided under former Code 1882, § 3801). Release. - Parol evidence is admissible to explain ambiguous language in a release. In determining the existence of an ambiguity in a release, reference is permitted only to the face of the document. Southern Stone Co. v. Singer, 665 F.2d 698, 1982 U.S. App. LEXIS 22700 (5th Cir. 1982) (decided under former O.C.G.A. § 24-6-3). Bill of sale. - Court erred in admitting parol evidence that a “bill of sale” was not intended to transfer ownership of a boat, the bill being executed on the regular required Coast Guard form, and all language therein relating to a sale and conveyance, the other provisions merely re-

lating to the method of payment. Peterson v. Lexington Ins. Co., 753 F.2d 1016, 1985 U.S. App. LEXIS 28179 (11th Cir. 1985) (decided under former O.C.G.A. § 24-6-3). Construction of insurance policy is for the court, generally. Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga. App. 874, 285 S.E.2d 566, 1981 Ga. App. LEXIS 2912 (1981) (decided under former Code 1933, § 38-502). Auctioneer’s memorandum of sale. - Rule as to the admissibility of parol evidence to explain a patent ambiguity in a deed to land applies with equal force to an auctioneer’s memorandum of the sale of land. Mohr v. Dillon, 80 Ga. 572, 5 S.E. 770, 1888 Ga. LEXIS 190 (1888) (decided under former Code 1882, § 3801); Wilson v. Coleman & Ray, 81 Ga. 297, 6 S.E. 693, 1888 Ga. LEXIS 113 (1888) (decided under former Code 1882, § 3801). Submission to award. - Ambiguities in a submission to award which describes the subject matter of controversy are explainable by parol evidence. Riley v. Hicks, 81 Ga. 265, 7 S.E. 173, 1888 Ga. LEXIS 104 (1888) (decided under former Code 1882, § 3801). Whether lease included in contract. - Parol evidence was admissible to explain an ambiguity as to whether the lease of a building was also included in the terms of the contract sued on. Vaughn v. Castleberry, 24 Ga. App. 496, 101 S.E. 299, 1919 Ga. App. LEXIS 878 (1919) (decided under former Civil Code 1910, § 5789). Lease ambiguous as to time may be explained by parol. Carmichael v. Brown, 97 Ga. 486, 25 S.E. 357, 1895 Ga. LEXIS 513 (1895) (decided under former Code 1882, § 3801). If the date of an entry is uncertain because of illegibility of the handwriting, this would constitute an ambiguity, and make a jury question. Bolton v. Keys, 38 Ga. App. 570, 38 Ga. App. 573, 144 S.E. 406, 1928 Ga. App. LEXIS 341 (1928) (decided under former Civil Code 1910, § 5789). Phrase “value received”. - Expression, “value received,” is a patent ambiguity, and the expression may be explained, and failure of consideration shown by parol. Pitts v. Allen, 72 Ga. 69, 1883 Ga.

Writings Explaining Each Other (Cont’d) LEXIS 16 (1883) (decided under former Code 1882, § 3801); Waller v. MartinSenour Co., 45 Ga. App. 808, 166 S.E. 53, 1932 Ga. App. LEXIS 713 (1932) (decided under former Civil Code 1910, § 5789); Building Assocs. v. Crider, 141 Ga. App. 825, 234 S.E.2d 666, 1977 Ga. App. LEXIS 2081 (1977) (decided under former Code 1933, § 38-502). Phrase “as hereafter agreed”. - One clause in a written contract providing for the payment of a certain sum “as hereafter agreed,” parol evidence was admissible to explain the ambiguity, and to show not only the date but the conditions, if any, on which such payment was to be made. Morrison v. Dickey, 119 Ga. 698, 46 S.E. 863, 1904 Ga. LEXIS 340 (1904) (decided under former Civil Code 1895, § 5202); see also Morrison v. Dickey, 122 Ga. 417, 50 S.E. 178, 1905 Ga. LEXIS 226 (1905). Phrase “good cotton”. - Term “good cotton” was subject to parol explanation to show the term’s meaning as used in the contract. Ford & Co. v. Lawson, 133 Ga. 237, 65 S.E. 444, 1909 Ga. LEXIS 199 (1909) (decided under former Civil Code 1895, § 5202). Determining meaning of ambiguous language. - If the language of an instrument in writing is ambiguous and may be fairly understood in more ways than one, it should be taken in the sense put upon it by the parties at the time of its execution, and the court will hear evidence as to the facts and surroundings, and decree according to the truth of the matter. Irwin v. Young, 212 Ga. 1, 90 S.E.2d 22, 1955 Ga. LEXIS 523 (1955) (decided under former Code 1933, § 38502). Unpriced, unexecuted damages provision. - In a claim for damages resulting from delays in the performance of a construction contract, parol evidence was relevant to construe the intent of the parties to incorporate and be bound by an unexecuted contract form containing an unpriced damages provision. Atlanta Economic Dev. Corp. v. Ruby-Collins, Inc., 206

Ga. App. 434, 425 S.E.2d 673, 1992 Ga. App. LEXIS 1664 (1992) (decided under former O.C.G.A. § 24-6-3). Parol evidence inadmissible for guaranty. - Lessor was not entitled to recover on an equipment lease guaranty because the guaranty was unenforceable since the guaranty omitted essential elements and under former O.C.G.A. § 24-63(a) the lease could not supply the missing elements since this required consideration of parol evidence, which was inadmissible for a contract required by the statute of frauds to be in writing. Dabbs v. Key Equip. Fin., Inc., 303 Ga. App. 570, 694 S.E.2d 161, 2010 Ga. App. LEXIS 379 (2010) (decided under former O.C.G.A. § 24-6-3). Consent judgment. - Trial court erred in determining that a corporation was not a party to a consent judgment because the consent judgment was ambiguous, and the provision stating that judgment was not entered against the corporation “at this time” since the corporation was in bankruptcy implied that the entry of judgment was contemplated at a later time; the surrounding circumstances showed that the corporation filed a dismissal of the corporation’s counterclaim with prejudice contemporaneously with the filing of the consent judgment, thereby manifesting an understanding that the corporation was included in, and obligated by, the consent judgment, and the corporation was listed as a defendant in the style of the case on the face of the consent judgment. Duke Galish, LLC v. Manton, 308 Ga. App. 316, 707 S.E.2d 555, 2011 Ga. App. LEXIS 176 (2011) (decided under former O.C.G.A. § 24-6-3). Effect of part performance. - Acceptance of the benefits and part performance of the contract by plaintiff would preclude the defendant from attacking the alleged oral portion of a contract which appeared to be an explanation of the entire contract rather than conflicting with any written provisions. Consumers Fin. Corp. v. Lamb, 217 Ga. 359, 122 S.E.2d 101, 1961 Ga. LEXIS 454 (1961) (decided under former Code 1933, § 38-502). Contract not ambiguous. - See McCann v. Glynn Lumber Co., 199 Ga. 669,

34 S.E.2d 839, 1945 Ga. LEXIS 344 (1945) (timber lease) (decided under former Code 1933, § 38-502). Integration clause precluded consideration of parol evidence. - Court of appeals could not consider parol evidence to add to, take from, contradict, or vary an assignment contract containing the terms of an estoppel certificate because the contract’s integration clause provided that the consent to assignment and all its exhibits, including the estoppel certificate, constituted the entire agreement of the parties and that all prior understandings and agreements among the parties concerning the matters were merged into the consent. Fundus Am. (Atlanta) L.P. v. RHOC Consolidation, LLC, 313 Ga. App. 118, 720 S.E.2d 176, 2011 Ga. App. LEXIS 930 (2011), cert. denied, No. S12C0629, 2012 Ga. LEXIS 401 (Ga. Apr. 24, 2012) (decided under former O.C.G.A. § 24-6-3). Writings in Real Estate Transactions Admissibility of parol evidence of site plan to show nonexistence of use restriction. - In a land use restriction action, a trial court erred by failing to consider a 1997 site plan, which allowed the parties to seek to amend the use of the land at issue and future development of the land; therefore, the trial court erred in enjoining a developer from constructing condominium towers since no such use restriction existed. CPI Phipps, LLC v. 100 Park Ave. Partners, L.P., 288 Ga. App. 614, 654 S.E.2d 690, 2007 Ga. App. LEXIS 1276 (2007), cert. denied, No. S08C0618, 2008 Ga. LEXIS 286 (Ga. Mar. 10, 2008) (decided under former O.C.G.A. § 24-6-3). Dates on multiple real estate documents. - Note, warranty deed, and agreement concerning a real estate transaction were all dated on the same day; therefore, the note and deed could be considered to establish the missing property description in the agreement. Owenby v. Holley, 256 Ga. App. 13, 567 S.E.2d 351, 2002 Ga. App. LEXIS 808 (2002) (decided under former O.C.G.A. § 24-6-3). Deed construed with petition. - Deed by a wife to her husband was construed together with a petition that she be

allowed to execute the deed. McCreary v. Gewinner, 103 Ga. 528, 29 S.E. 960, 1898 Ga. LEXIS 156 (1898) (decided under former Civil Code 1895, § 5202). Use restriction in easement not applicable to deeds. - As there were no restrictions on use in warranty deeds that a property owner conveyed to a city, a restrictive use that was in a contemporaneously-executed easement could not be imposed on the deeds pursuant to former O.C.G.A. § 24-6-3(a). White House Inn & Suites, Inc. v. City of Warm Springs, 285 Ga. 322, 676 S.E.2d 178, 2009 Ga. LEXIS 165 (2009) (decided under former O.C.G.A. § 24-6-3). Description in lease. - If a lease contains a general descriptive phrase, the meaning of which was presumably well known to both the contracting parties, parol evidence is admissible for the purpose of applying the description to the subject matter, but any attempt to prove that at the time of the execution of the contract the parties had an oral understanding as to the meaning of such phrase would clearly violate the statute of frauds, as well as the parol evidence rule. Dorsey v. Clements, 202 Ga. 820, 44 S.E.2d 783, 1947 Ga. LEXIS 534 (1947) (decided under former Code 1933, § 38-502). Descriptions in real property transactions. - If there is a discrepancy as to a party’s name in a plat and grant, this is a patent ambiguity and explainable by parol evidence. Ferrell v. Hurst, 68 Ga. 132, 1881 Ga. LEXIS 329 (1881) (decided under former Code 1873, § 3801). If the description in a deed is ambiguous but sufficient to furnish a key to the boundary, extrinsic evidence may be used to correctly apply the description to the true boundary intended by the parties. Miller v. Rackley, 199 Ga. 370, 34 S.E.2d 438, 1945 Ga. LEXIS 312 (1945) (decided under former Code 1933, § 38-502). When the descriptive averments contained in a deed are sufficient to furnish a key whereby the land which the grantor intended to convey may be ascertained, parol evidence which does not add to, enlarge, or in any way change the description is admissible for the purpose of identifying the conveyed land. Gainesville M.R.R. v. Tyner, 204 Ga. 535, 50 S.E.2d

Writings in Real Estate Transactions (Cont’d) 108, 1948 Ga. LEXIS 465 (1948) (decided under former Code 1933, § 38-502); see also Haygood v. Duncan, 204 Ga. 540, 50 S.E.2d 214, 1948 Ga. LEXIS 469 (1948). If a property description in a written contract is ambiguous, in that it can be interpreted as referring to more than one piece of property, parol evidence is admissible to explain the ambiguity and the

contract is not rendered unenforceable for vagueness. Tuggle v. Wilson, 248 Ga. 335, 282 S.E.2d 110, 1981 Ga. LEXIS 962 (1981) (decided under former Code 1933, § 38-502). Claim of title in deed. - Any ambiguities in a deed may be explained by parol, if the evidence can be applied to elucidate the claim of title. Daniels v. Cagle, 180 Ga. 853, 181 S.E. 178, 1935 Ga. LEXIS 582 (1935) (decided under former Code 1933, § 38-502).

RESEARCH REFERENCES Am. Jur. 2d. 29A Am. Jur. 2d, Evidence, §§ 1075, 1101 et seq. C.J.S. 32A C.J.S., Evidence, §§ 1149, 1156, 1173, 1193, 1194. ALR. Admissibility of parol evidence as to amount of commodity specified in written contract of sale, 8 A.L.R. 747. Parol evidence as to whether one whose name appears on the face of a note signed as a witness or as maker, 15 A.L.R. 197. Parol evidence rule as applied to lease, 25 A.L.R. 787; 88 A.L.R. 1380; 151 A.L.R. 279. Admissibility of parol evidence to explain ambiguity in description of land in deed or mortgage, 68 A.L.R. 4. “Contractual” consideration as regards parol evidence rule, 100 A.L.R. 17. Admissibility of parol evidence to show whether particular word or phrase was intended to connote a chattel mortgage or conditional sale, 101 A.L.R. 625. Rule that latent ambiguities may be explained by parol evidence but that patent ambiguities may not, 102 A.L.R. 287. Admissibility of oral or extrinsic evidence on question of liability on bill of

exchange, promissory note, or other contract where signature is followed by word or abbreviation which may be either descriptive or indicative of contracting character, 113 A.L.R. 1364. Election by beneficiary to take under or against will as predictable upon initiation of, or participation in, court proceedings, 166 A.L.R. 316. Extrinsic evidence regarding character and size of trees contemplated by written timber contract or lease, 173 A.L.R. 518. Parol evidence to show duration of written contract for support or maintenance, 14 A.L.R.2d 897. Admissibility of parol evidence to connect signed and unsigned documents relied upon as memorandum to satisfy statute of frauds, 81 A.L.R.2d 991. Wills: admissibility of extrinsic evidence to determine whether fee or absolute interest, or only estate for life or years, was given, 21 A.L.R.3d 778. The parol evidence rule and admissibility of extrinsic evidence to establish and clarify ambiguity in written contract, 40 A.L.R.3d 1384. Admissibility of parol evidence to show whether guaranty of corporation’s obligation was signed in officer’s representative or individual capacity, 70 A.L.R.3d 1276.