Bullard v. Citizens Nat. Bank of Meridian

• Decision Date: 04 January 1937
• Docket Number: 32474
• Citation: 171 So. 540,177 Miss. 735
• Court: Mississippi Supreme Court
• Parties: BULLARD v. CITIZENS NAT. BANK OF MERIDIAN

171 So. 540

177 Miss. 735

BULLARD v. CITIZENS NAT. BANK OF MERIDIAN

No. 32474

Supreme Court of Mississippi

January 4, 1937

Division B

Suggestion Of Error Overruled, February 15, 1937.

APPEAL from the circuit court of Lauderdale county HON. A. G. BUSBY Judge.

Action by Mrs. Sylvia G. Bullard against the Citizens National Bank of Meridian. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Graham & Graham, of Meridian, for appellant.

It will be noticed that in this case the proof to sustain liability is by practically the same witnesses giving the same testimony about the same subject matter, involving the same parties, which testimony after being weighed and considered in Bullard v. Citizens National Bank, 173 Miss. 450, the following quotation is from the opinion of the court: "There is ample evidence in the record to sustain a finding that the representations substantially as alleged by appellant were made and apparently the chancellor assumed for the sake or argument, that the stated issue was proved in appellant's behalf."

The trial court on practically the same evidence found as a matter of fact that R. L. Blanks did represent these bonds as having been guaranteed by surety companies, which facts were upheld by this court in the cases of Sylvia G. Bullard v. Citizens National Bank, 173 Miss. 450, Citizens National Bank v. Golden, 166 So. 745, Citizens National Bank v. Lamar Pigford, 166 So. 749, Citizens National Bank v. Lula Belle Allen, 167 So. 627.

It is a well established general rule that a statement of a party, whether oral or written, which is of a self-serving nature, is not admissible in evidence in his favor while such statements are usually made because the declarant is for some reason interested, at the time, in having the fact supposed or believed to be as stated by him, the element of present interest is not essential, for it has been considered that the rule applies with full force notwithstanding the fact that the declarant was disinterested at the time when the statement was made. Such declarations are not rendered admissible by having been a part of a conversation or correspondence with the declarant's witness, or with a person sent by the opposite party, or with the adverse party himself, or his agent, by having been brought to the attention of the other party or his agent and commented upon by him; by having been entered upon a book of account or other record; or by being brought out in cross-examination. Such declarations are equally inadmissible when offered by the declarant's representatives, and the rule of exclusion also applies when such declarations are offered in evidence by third persons on their own behalf.

22 C. J. 220, par. 193; Presley v. Quarles, 31 Miss. 151; Wilkerson v. Moffett-West Drug Co., 21 So. 564; Memphis Grocery Co. v. Valley Land Co., 17 So. 232; Johnson v. Kelly, 41 Miss. 696, 93 Am. Dec. 274; Whitfield v. Whitfield, 40 Miss. 352; Nye v. Grubbs, 16 Miss. 643.

The unsworn declarations of an agent are not admissible on behalf of the principal, even though the agent is dead.

22 C. J. 228, par. 194-6.

The following authorities from this court entitle the appellant to a new trial on account of the verdict being contrary to the overwhelming preponderance of the testimony.

Universal Truck Loading Co. v. Taylor, 164 So. 3; Beard v. Williams, 172 Miss. 880, 161 So. 750; Shelton v. Underwood, 163 Miss. 828; Hartford Fire Ins. Co. v. Williams, 145 So. 94, 165 Miss. 233; Columbus & Greenville Ry. v. Buford, 116 So. 817, 150 Miss. 832; M. & O. R. R. Co. v. Johnson, 141 So. 581, 165 Miss. 397.

An election of remedies being an affirmative defense it must be pleaded in order to be available. Such plea should show that the remedy first sought was an available remedy as otherwise no election is shown.

Tullos v. Mayfield, 198 S.W. 1073; Zimmerman v. Harding, 228 U.S. 489; Bristline v. U.S. 144 C. C. A. 6; U. S. v. Yuen Tak Suene, 112 C. C. A. 339; Greenhall v. Carnegie Trust Co., 180 F. 812; Todd v. Interstate Mortgage Co., 196 Ala. 169, 71 So. 661; Calhoun County v. Art Metal Construction Co., 152 Ala. 607, 44 So. 876; So. R. R. Co. v. Attala, 147 Ala. 653, 41 So. 664; Corbett v. Boston R. R. Co., 219 Mass. 351; Bryant v. Kenyon, 123 Mich. 151; Henry v. Herrington, 193 N.Y. 218, 20 L.R.A. (N.S.), 249; 20 C. J. 21, par. 17.

Wilbourn, Miller & Wilbourn, of Meridian, for appellee.

It seems passing strange to us that counsel should proceed before the jury in the court below upon the theory that there was an issue as to liability and that it was a question for the jury to determine as to whether or not any false representations were made to the appellant as an inducement to her to part with her money, not asking any peremptory instruction, and then when the verdict of the jury on the testimony in response to such instructions is unfavorable, to complain that the verdict is contrary to the overwhelming weight of the evidence. Furthermore, the law is, and the lower court so instructed the jury at the instance of the appellant, that it was the duty of the appellant to establish her case by a preponderance of the clear and convincing testimony that the alleged representation had been made as claimed.

McCain v. Cochran, 153 Miss. 237, 120 So. 823.

By no possibility could the cases of Citizens National Bank v. Golden, Citizens National Bank v. Lamar Pigford, and Citizens National Bank v. Allen, have any bearing whatever here, for the reason that none of those cases involved any bonds of National Union Mortgage Company. Those three cases dealt only with Central Securities Company bonds. The individual bonds were different, the individual plaintiffs were different, the times and circumstances were different and those cases have nothing whatever to do with the issue of fact involved in this case.

The declarations of a party are admissible as evidence in his favor when they make a part of the res gestae, or where such declarations are necessary to explain an act, which takes its character from the design and intention of the party who does it; or where the intentions of a party are sought to be established, he may show what were his intentions by introducing evidence of his acts and declarations made ante litem motam, and at a time when he could have no reasonable motive to misstate facts.

Baker v. Kelly, 41 Miss. 696.

A correct understanding of the facts of this case will demonstrate as we see it that the verdict of the jury is not contrary to the overwhelming weight of the evidence.

We have always regarded it as fundamental that before one could recover upon any claim of misrepresentation on the part of another, he must show as a part of his case that he acted in reliance upon such statements to his prejudice, It is never sufficient to show merely that the misrepresentation was made and that it was untrue. A plaintiff must further establish that he had a right to rely upon the misstatement and did do so to his prejudice.

We think the law is that an appellee may always point out to a court on appeal any matter apparent of record which constitutes a valid support for the decree of the lower court, regardless of how the lower court decided the point.

Langnes v. Green, 282 U.S. 531, 75 L.Ed. 520; U. S. v. American Ry. Exp. Co., 265 U.S. 425, 68 L.Ed. 1087, 44 S.Ct. 560.

Where a party may exercise one of two co-existent remedies, one of which is inconsistent with the other and elects to pursue to a conclusion through the courts one of such inconsistent remedies, he cannot thereafter invoke the other remedy.

20 C. J. 20, 38, sec. 33; Warrener v. Fant, 114 Miss. 174, 74 So. 822; Murphy v. William Nelson Hutchinson, 93 Miss. 643, 48 So. 178, 21 L.R.A. (N.S.) 785; Hatley Mfg. Co. v. Smith, 154 Miss. 846, 123 So. 887; Reeves v. McNeil, 127 Miss. 839, 90 So. 595; U. S. v. Oregon Lbr. Co., 260 U.S. 290, 67 L.Ed. 261.

Argued orally by S. M. Graham, for appellant, and by C. C. Miller, for appellee.

OPINION

Anderson, J.

Appellant brought this action in the circuit court of Lauderdale county against appellee to recover damages claimed to have been suffered by her because of alleged false and fraudulent representations made to her by ap...