O.C.G.A.
O.C.G.A.

O.C.G.A. § 24-3-6 (2019)

Rebuttal of equity; discharge of contract; proof of subsequent agreement; change of time or place of performance

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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Parol evidence shall be admissible to rebut an equity, to discharge an entire contract, to prove a new and distinct subsequent agreement, to enlarge the time of performance, or to change the place of performance.

History

Code 1981, § 24-3-6, enacted by Ga. L. 2011, p. 99, § 2/HB 24.

Annotations

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1863, § 3729, former Code 1868, § 3753, former Code 1873, § 3806, former Code 1882, § 3806, former Civil Code 1895, § 5207, former Civil Code 1910, § 5794, former Code 1933, § 38-507, and former O.C.G.A. § 24-6-6 are included in the annotations for this Code section. Plea of accord and satisfaction may be supported by parol evidence that the notes sued on were paid in full and satisfied by the surrender of the property described in the mortgage deed (given to

secure the debt) in full and complete satisfaction of the debt; that the owner and holder of the note accepted the property in settlement of the notes sued on; and that the settlement was beneficial to the then owners and the holders of the notes, in that it enabled the owners to obtain property without the expense of foreclosure. Butts v. Maryland Cas. Co., 52 Ga. App. 838, 184 S.E. 774, 1936 Ga. App. LEXIS 265 (1936) (decided under former Code 1933, § 38-507). Admissible testimony generally. - When there is strong presumptive evidence that, subsequently to the execution

of a written contract, the parties agreed orally upon a new contract, which was a modification of the former, testimony may be received of negotiations and conversations between these parties previous to the written contract for the purpose of throwing light upon, and showing more clearly, the nature and character of the subsequent agreement. Collins v. Lester, 16 Ga. 410, 1854 Ga. LEXIS 199 (1854) (decided under former Code 1933, § 38507). Agreement must be based on valuable consideration. - While parol evidence was admissible to prove a new and distinct agreement subsequent to the original written contract in reference to the same subject matter, such new agreement must be based upon a valuable consideration. Phelps v. Belle Isle, 29 Ga. App. 571, 116 S.E. 217, 1923 Ga. App. LEXIS 121 (1923) (decided under former Civil Code 1910, § 5794); Guthrie v. Rowan, 34 Ga. App. 671, 131 S.E. 93, 1925 Ga. App. LEXIS 470 (1925) (decided under former Civil Code 1910, § 5794); Moon Motor Car Co. v. Savannah Motor Car Co., 41 Ga. App. 231, 152 S.E. 611, 1930 Ga. App. LEXIS 513 (1930) (decided under former Civil Code 1910, § 5794); 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, § 38-507); P & O Mach. Works, Inc. v. Pollard, 115 Ga. App. 96, 153 S.E.2d 631, 1967 Ga. App. LEXIS 1019 (1967) (decided under former Code 1933, § 38-507); American Century Mtg. Investors v. Bankamerica Realty Investors, 246 Ga. 39, 268 S.E.2d 609, 1980 Ga. LEXIS 1007 (1980) (decided under former Code 1933, § 38-507); Llop v. National Bank, 154 Ga. App. 504, 268 S.E.2d 777, 1980 Ga. App. LEXIS 2250 (1980) (decided under former Code 1933, § 38-507). Agreement must embody essentials of new contract. Phelps v. Belle Isle, 29

Ga. App. 571, 116 S.E. 217, 1923 Ga. App. LEXIS 121 (1923) (decided under former Civil Code 1910, § 5794); Guthrie v. Rowan, 34 Ga. App. 671, 131 S.E. 93, 1925 Ga. App. LEXIS 470 (1925) (decided under former Civil Code 1910, § 5794). All previous verbal negotiations respecting a sale were merged in the subsequently written contract, and it was not permissible to prove a prior or contemporaneous parol agreement which had the effect of varying the terms of the written contract. Cottle v. Tomlinson, 192 Ga. 704, 16 S.E.2d 555, 1941 Ga. LEXIS 603 (1941) (decided under former Code 1933, § 38-507). Agreement to give collateral security. - Parol agreement of parties subsequent to the execution of a contract of sale that the purchaser would turn over to the vendor a certain paper as collateral security was admissible. Loveless v. Bridges, 136 Ga. 338, 71 S.E. 166, 1911 Ga. LEXIS 530 (1911) (decided under former Civil Code 1910, § 5794). Agreement as to time of delivery. - When a written contract for the purchase and sale of goods fixed no time for performance, it will be construed as implying that delivery will be made and accepted within a reasonable time, but parol evidence was admissible to prove a new and distinct subsequent agreement, mutually acted upon, that the deliveries would be made in installments at certain stated intervals. Breman v. Rodbell, 31 Ga. App. 358, 120 S.E. 697, 1923 Ga. App. LEXIS 946 (1923) (decided under former Civil Code 1910, § 5794). Evidence of agreement to rescind contract held admissible. - See Manry v. Selph, 77 Ga. App. 808, 50 S.E.2d 27, 1948 Ga. App. LEXIS 649 (1948) (decided under former Code 1933, § 38-507); Flatauer v. Goodman, 84 Ga. App. 881, 67 S.E.2d 794, 1951 Ga. App. LEXIS 814 (1951) (decided under former Code 1933, § 38-507).

RESEARCH REFERENCES Am. Jur. 2d. 29A Am. Jur. 2d, Evidence, § 1094. C.J.S. 32A C.J.S., Evidence, § 1151 et seq.

ALR. “Contractual” consideration as regards parol evidence rule, 100 A.L.R. 17. Provision in sale contract to effect that

only conditions incorporated therein shall be binding, 127 A.L.R. 132; 133 A.L.R. 1360. Performance of work previously contracted for as consideration for promise to pay greater or additional amount, 12 A.L.R.2d 78; 85 A.L.R.3d 259.

Application of parol evidence rule in action on contract for architect’s services, 69 A.L.R.3d 1353. Enforceability of voluntary promise of additional compensation because of unforeseen difficulties in performance of existing contract, 85 A.L.R.3d 259.

Notes of Decisions
Cited in 17 cases (1 in the last 5 years), 1984–2021 · leading case: Ventura v. State, 663 S.E.2d 149 (Ga. 2008).
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Ventura v. State, 663 S.E.2d 149 (Ga. 2008). · cites it 4× “” OCGA § 24-3-6. For testimony to be admissible as a dying declaration, [i]t need only appear to the court from the circumstances of the case that there was a probability that the deceased was conscious of his condition at the time he made the statement.”
Kitchens v. State, 342 S.E.2d 320 (Ga. 1986). · cites it 12× “Following a pretrial hearing the trial court ruled that the statements could go to the jury under the dying declarations exceptions to the hearsay rule, OCGA § 24-3-6. The statements which Jones made to Sheriff Cannon while in the Macon County Medical Center relate the following…”
State v. Gilmore, 862 S.E.2d 499 (Ga. 2021). · cites it 4× “2 (763 SE2d 484) (2014) (holding that a shooting victim “respond[ing] affirmatively by nodding his head” to a family member’s question about whether a particular person shot him was a statement (and thus hearsay) but was admissible as a dying declaration under former OCGA §…”
Morgan v. State, 564 S.E.2d 192 (Ga. 2002). · cites it 2× “” OCGA § 24-3-6. “[I]t need only appear to the court from the circumstances of the case that there was a probability that the deceased was conscious of his condition at the time he made the statement.”
Sanford v. State, 695 S.E.2d 579 (Ga. 2010). · cites it 4× “OCGA § 24-3-6. 2 It need only appear to the court from the circumstances of the case that there was a probability that the deceased was conscious of his condition at the time he made the statement.”
Walton v. State, 603 S.E.2d 263 (Ga. 2004). · cites it 2× “2 See OCGA § 24-3-6. 3 At trial, Roger Walton’s choice not to testify was discussed in terms of the privilege accorded under OCGA § 24-9-27 (a), which states: No party or witness shall be required to testify as to any matter which may criminate or tend to criminate himself or…”
Wiggins v. State, 763 S.E.2d 484 (Ga. 2014). · cites it 4× “Certainly, in order for a statement to be admissible as a dying declaration under former OCGA § 24-3-6, 3 the deceased must have been conscious of his condition; however, “it need only appear to the court from the circumstances of the case that there was a probability that the…”
Mathis v. State, 728 S.E.2d 661 (Ga. 2012). · cites it 2× “See OCGA § 24-3-6 (“[d] eclarations by any person in the article of death, who is conscious of his condition, as to the cause of his death and the person who killed him, shall be admissible in a prosecution for the homicide”).”
Wright v. State, 330 S.E.2d 358 (Ga. 1985). · cites it 4× “See OCGA § 24-3-6. There was no error in admitting the statement, since there was evidence that the victim later made the same statement while fully aware of his impending death.”
Woodard v. State, 607 S.E.2d 592 (Ga. 2005). · cites it 2× “” OCGA § 24-3-6. Before the deceased’s statement is admitted into evidence, the trial court determines a prima facie showing has been made.”
Norris v. State, 376 S.E.2d 653 (Ga. 1989). · cites it 2× “Under OCGA § 24-3-6 a statement made by a person regarding the cause of his impending death and the person who killed him are admissible in a homicide prosecution when the victim is in the articles of death and conscious of his condition when the statement is made.”
Richie v. State, 369 S.E.2d 740 (Ga. 1988). · cites it 2× “There was ample evidence to establish prima facie that the victim was aware that he was “in the article of death” when he subsequently confirmed his previous identification of his assailant by hand signals, thereby qualifying the statement as admissible under OCGA § 24-3-6. 3.…”
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