(After stating the facts.) 1. It is not to be questioned, that, as an almost universal rule, where the parties to a contract have reduced to writing what appears to be a complete and certain agreement, it is to be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or stipulations is inadmissible to add to, take from, or vary the written instrument. Bullard v. Brewer, 118 Ga. 918. In the present case, however, the defendant voluntarily conceded in his answer, that, under the contract between himself and the plaintiff, he was obligated to repair the dam, notwithstanding there was no stipulation to this effect in the writings evidencing the contract; and on the trial he testified that prior to the negotiations between them the dam had been practically all washed away, and he had started to replace it, having made a contract with Gus and John L. Williams to rebuild the same for the sum of $87.50. The defendant further admitted, that when trading with Walden, he- told him he could have all his rights' under this contract ; that the plaintiff could have these contractors finish the dam, and that he (defendant) would pay them the balance which he would owe them on their contract for building and repairing the dam. In view of the solemn admission in judicio which the defendant made in his answer, we are of the o]3inion that he estopped himself from insisting that the writings which passed contained no reference to the obligation he had assumed with respect to putting the dam in repair, and from contending that the plaintiff was not at liberty to testify as to whether or not this obligation had been met. It appeared, from the defendant's evidence, that he had contracted with the persons who were to repair or replace the dam that they should erect what was known as a “tumbling” dam, such being the character of the dam which had previously been washed away. Considered in the light of these facts, the testimony of the plaintiff to which objection was made did not have the effect of engrafting *917upon the written contract any stipulation or obligation on the part of the defendant which he did not admit he had assented to and assumed, but simply amounted to a denial of his contention that he had fully complied with his recognized obligation to place the dam in a state of repair and usefulness. Accordingly, we conclude that the admission of the testimony objected to did not afford cause for granting a new trial.
2. Our Civil Code, §3712, expressly provides that one party to a contract can elect to rescind it because of non-performance by the other party of his covenants, “only when both parties can be restored to the condition in which they werb before the contract was made.” But the failure to so charge in the present case did not operate to the prejudice of the defendant, since this rule is not applicable except in a case where the party claiming a right to rescind establishes by proof that the other party did not comply with his obligations. The plaintiff had not established his alleged right to treat the contract as rescinded, and therefore a charge based upon the assumption that he had would have worked no benefit to the defendant. His real cause of complaint is that the court did not grant a new trial on the ground that the evidence did not warrant a finding in favor of the plaintiff.
The evidence introduced in behalf of the defendant disclosed that he employed, as contractors, Gus and John L. Williams to rebuild the dam, stipulating that they were to do the work according to certain specifications. The slanting part of the dam, next to the water, was to be sheeted with boards, which were to be covered with dirt for the space' of three or four feet from the bottom ; when the dam was sheeted and this dirt put on the boards, the water was to be turned on until it rose ei foot on this dirt, and then lowered; then it was to be turned on and allowed to rise two feet, and then turned off again; and so on, until the dirt and dam had fully settled and the dam was tested. If this were not done, the dam would be sure to wash out when a full head of water was turned on. The breast-boards were to be put on without nailing them, so they could be instantly taken off in the event any leak should spring when the water was turned on. One of the contractors, Gus Williams, testified that the defendant particularly instructed them to put dirt on the planks which covered the frame of the dam, which slanted toward the water, the dirt to be put on *918for three or four feet from the bottom of the dam; and that the defendant also cautioned them with regard to testing the dam in accordance with his instructions as to turning on the water. This witness further testified that after the sheeting had been put on, but before any dirt had been placed on the plank at the bottom of the dam, as directed by the defendant and as done on all tumbling dams, Walden told witness to turn the water on — that he wanted a head of water, so he could grind the following Monday. The witness told Walden what the defendant had said about turning the water on, and about the contract to put dirt on the dam; but Walden replied that the defendant had nothing to do with the mill any more, that he had bought it, and that he would take the risk; whereupon the witness told him all right, if he would stand between him and John B. Williams, and Walden said he would, and ordered the water turned on, notwithstanding witness warned him of the danger. They then turned the water on, and during the' succeeding night the dam was washed out, as witness had predicted.. The other contractor, John L. Williams, testified to the same effect, regarding the instructions given by the defendant as to how the dam should be constructed and tested, and added that Walden had ordered the breast-boards to be nailed on, notwithstanding he was. told of defendant’s instructions to the contrary, saying the property was his and he had charge of it, and ordering witness to put in. plenty of nails, as defendant was furnishing them. Opposed to' this evidence was the testimony of the plaintiff, who denied that he had ordered the breast-planks nailed on, or had told Gus Williams to turn the water on, as it was his property and he would take the risk, or that he had said he wanted a head of water by Monday morning, so he could go to grinding. The plaintiff admitted, however, that he was at the mill on Saturday before the' night of the washout, and was at work helping Gus Williams finish the dam, and that he (plaintiff) had “told him John B. Williams, said to turn the water on.” The plaintiff did not undertake to assert that, in point of fact, the defendant, John B. Williams, had authorized him or any one else “to turn the water on,” nor did the plaintiff offer any explanation with regard to the statement he admitted having made to Gus Williams. The defendant testified that the water was turned on in violation of his express instructions to' the contractors, and that he knew nothing about the matter till *919after the dam had been washed out during the night of Saturday, January 8, 1898. Unless he did direct that the water should be turned on, despite the incompletion of the dam and the danger attending such a course, or one of the contractors wrongfully did so of his own motion, the defendant would certainly not be responsible for the consequences. According to the evidence, as it appears in the record before us, the plaintiff was alone responsible for the loss of the dam, and by his conduct relieved the defendant of any obligation he may have assumed in reference to the rebuilding of the dam. The plaintiff swore, that on the morning after the new dam -was thus destroyed, he went to the defendant and told him he did not want the property, as the defendant had failed to complete the dam by January 1, as he had agreed to do; that after talking over the matter for some time, it was agreed that they should meet at the mill the next day and see what could be done; and on the following day plaintiff finally consented to keep the property if the defendant would build a block dam, completing it by June 1st; that the defendant agreed to this proposition, but never did anything toward carrying out his agreement; and that on June 1st plaintiff told him the mill was his and demanded that he pay back the money paid to him under the contract. With equal positiveness the defendant swore that he never entered into any such agreement. Whatever may be the truth in this regard, the fact remains that the defendant had been fully relieved by the conduct of the plaintiff from taking any further steps to replace the dam; and even if the defendant did in fact agree to thereafter construct a block dam, his undertaking to do so was a mere nude pact, being wholly without any consideration.
It may be that on another hearing the plaintiff will be able to offer some reasonable explanation of his statement to one of the contractors that the defendant had “said to turn the water on” the uncompleted dam, contrary to his previous positive directions not to do so till sufficient dirt had been placed on' the plank near the bottom, and then in such a way only as to observe the precautions he had particularly instructed them not to neglect. But as the ease now comes to us, we are constrained to hold that the jury was not warranted in returning a verdict in favor of the plaintiff.
Judgment reversed.
All the Justices concur, except Atkinson, J., who did not preside.