Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 3725, former Code 1868, § 3749, former Code 1882, § 3802, former Civil Code 1895, § 5203, former Civil Code 1910, § 5790, former Code 1933, § 38-503, and former O.C.G.A. § 24-6-8 are included in the annotations for this Code section.

Failure of consideration.

- It may be shown that a note sued on was in fact without legal consideration of any kind, and that the actual basis of the undertaking was wholly illegal and the resultant promise absolutely void. Simmons v. International Harvester Co. of Am., 22 Ga. App. 358, 96 S.E. 9 (1918) (decided under former Civil Code 1910, § 5790). Miller v. Whitesburg Banking Co., 58 Ga. App. 84, 197 S.E. 906 (1938) See also S. & S. Bldrs., Inc. v. Equitable Inv. Corp., 219 Ga. 557, 134 S.E.2d 777 (1964) (decided under former Code 1933, § 38-503);(decided under former Code 1933, § 38-503).

Writing which undertakes to contract about a fictitious thing, even though it be denominated a consideration in the writing is in fact without consideration, is void, and the fact that it is void may be shown by parol under the rule of evidence. Jewell v. Norrell, 66 Ga. App. 11, 16 S.E.2d 797 (1941) (decided under former Code 1933, § 38-503).

When the promise as stated in the writing is admitted, the promisor can show that there was no consideration or that there was a consideration which has failed wholly or in part, and therefore the promise is no longer supported, and must fail either in whole or in part, according to the facts. First Nat'l Bank v. Harrison, 408 F. Supp. 137 (N.D. Ga. 1975), aff'd, 529 F.2d 1350 (5th Cir. 1976) (decided under former Code 1933, § 38-503).

Consideration of a contract may be always inquired into in order to show that the promise is no longer binding according to its tenor; but in inquiring into the consideration the promisor cannot deny that the promisor made the promise evidenced by the writing. First Nat'l Bank v. Harrison, 408 F. Supp. 137 (N.D. Ga. 1975), aff'd, 529 F.2d 1350 (5th Cir. 1976) (decided under former Code 1933, § 38-503).

Different consideration may be shown by parol evidence. Harris v. Tisereau, 52 Ga. 153 (1874) (decided under former Code 1863, § 3725).

Nonperformance of condition precedent.

- Written document may by parol or other extrinsic evidence be shown not to be a contract at all because of the nonperformance of a condition precedent as to which the writing is silent. Rudder v. Belle Isle, 46 Ga. App. 336, 167 S.E. 753 (1933) (decided under former Civil Code 1910, § 5790).

Violation of public policy.

- When a contract apparently valid on the contract's face was attacked on the ground that the contract was entered into in violation of public policy, a court, when called upon to approve such a contract, will closely examine the terms of the contract and the circumstances under which the contract was entered into, before permitting the agreement to be made the judgment of the court. Beverly v. Beverly, 209 Ga. 468, 74 S.E.2d 89 (1953) (decided under former Code 1933, § 38-503); Funderburk v. Funderburk, 229 Ga. 457, 192 S.E.2d 262 (1972);(decided under former Code 1933, § 38-503).

Fraud.

- Parol evidence was admissible to show that a writing was void on account of fraud. Hinkle v. Hixon, 154 Ga. 193, 113 S.E. 805 (1922) (decided under former Civil Code 1910, § 5790); Johnson v. Sherrer, 197 Ga. 392, 29 S.E.2d 581 (1944); S. & S. Bldrs., Inc. v. Equitable Inv. Corp., 219 Ga. 557, 134 S.E.2d 777 (1964) (decided under former Code 1933, § 38-503); Hinson v. Hinson, 221 Ga. 291, 144 S.E.2d 381 (1965); Cone Mills Corp. v. A.G. Estes, Inc., 399 F. Supp. 938 (N.D. Ga. 1975) (decided under former Code 1933, § 38-503); Lewis v. Citizens & S. Nat'l Bank, 139 Ga. App. 855, 229 S.E.2d 765 (1976); Thompson v. Wilkins, 143 Ga. App. 739, 240 S.E.2d 183 (1977) (decided under former Code 1933, § 38-503);(decided under former Code 1933, § 38-503);(decided under former Code 1933, § 38-503);(decided under former Code 1933, § 38-503).

Trial court erred by granting summary judgment to a child in a suit brought by a sibling seeking a determination that the sibling was the sole beneficiary of their parent's life insurance policy as the sibling sufficiently alleged fraud and/or forgery with regard to a second beneficiary designation form allegedly signed by the parent. As such, the trial court should have permitted the sibling to introduce two affidavits that supported the sibling's allegations that the second beneficiary designation form was void. Weatherly v. Weatherly, 292 Ga. App. 879, 665 S.E.2d 922 (2008) (decided under former O.C.G.A. § 24-6-8).

Promise by bank not to enforce promissory note.

- There is no confidential relationship between a bank and a customer borrowing funds and therefore an oral agreement not to enforce a promissory note, which is a contract in writing, is not a type of fraud constituting an exception to the parol evidence rule. Boatman v. Citizens & S. Nat'l Bank, 155 Ga. App. 848, 273 S.E.2d 190 (1980) (decided under former Code 1933, § 38-503).

Colorable scheme between husband and wife.

- If a wife did not in fact purchase and was not to receive the machinery under the contract sued on, but the whole transaction was merely a colorable scheme or device by which the wife was induced by the plaintiff to assume the previous debt of the husband, without any consideration flowing to her, she would have the right to repudiate the entire illegal and void transaction, no matter by what device its true inwardness and purpose had been concealed. Simmons v. International Harvester Co. of Am., 22 Ga. App. 358, 96 S.E. 9 (1918) (decided under former Civil Code 1910, § 5790).

Evidence that party signed blank paper.

- Evidence tending to prove that a party only signed a blank sheet of paper, instead of signing a written and printed contract, was admissible. Chicago Bldg. & Mfg. Co. v. Butler, 139 Ga. 816, 78 S.E. 244 (1913) (decided under former Civil Code 1910, § 5790).

Contract to evade usury, penalty, or forfeiture.

- Parol evidence was admissible to show the circumstances attending the execution of papers and the sayings of the parties at the time for the purpose of ascertaining their intention as to a shipment of the cotton and enabling a jury to determine whether the contract of shipment was a device to evade the law relating to usury. Dwelle & Daniel v. Blackwood, 106 Ga. 486, 32 S.E. 593 (1899) (decided under former Civil Code 1895, § 5203).

While a valid written contract cannot be contradicted or varied by parol, it is competent by such evidence to show that the writing is but a cover for usury, penalty, or forfeiture. Lytle v. Scottish Am. Mtg. Co., 122 Ga. 458, 50 S.E. 402 (1905) (decided under former Civil Code 1895, § 5203).

What is called rent may be shown to have been really a part of the purchase money, or a device to obtain a penalty. Lytle v. Scottish Am. Mtg. Co., 122 Ga. 458, 50 S.E. 402 (1905) (decided under former Civil Code 1895, § 5203).

It was always permissible to show by parol evidence that a paper was but a cover for usury, penalty, forfeiture, or other illegal advantage to one of the parties. For if the law did not sedulously disregard form and seek for substance, nothing would be easier than the law's evasion by giving innocent names to prohibited acts. Flood v. Empire Inv. Co., 35 Ga. App. 266, 133 S.E. 60 (1926) (decided under former Civil Code 1910, § 5790).

Am. Jur. 2d.

- 29A Am. Jur. 2d, Evidence, § 1119 et seq.

C.J.S.

- 32A C.J.S., Evidence, §§ 1207, 1221, 1224 et seq., 1234 et seq.

ALR.

- Parol evidence rule; right to show fraud in inducement or execution of written contract, 56 A.L.R. 13.

"Contractual" consideration as regards parol evidence rule, 100 A.L.R. 17.

Parol evidence rule as applied to lease, 151 A.L.R. 279.

Election by beneficiary to take under or against will as predictable upon initiation of, or participation in, court proceedings, 166 A.L.R. 316.

Admissibility of declarations by testator on issue of revocation of will, 172 A.L.R. 354.

Failure to object to parol evidence, or voluntary introduction thereof, as waiver of defense of statute of frauds, 15 A.L.R.2d 1330.

Admissibility of oral evidence to show that a writing was a sham agreement not intended to create legal relations, 71 A.L.R.2d 382.