Caldwell v. Meshew

• Decision Date: 10 May 1890
• Citation: 13 S.W. 761,53 Ark. 263
• Parties: CALDWELL v. MESHEW
• Court: Arkansas Supreme Court

13 S.W. 761

53 Ark. 263

CALDWELL v. MESHEW

Supreme Court of Arkansas

May 10, 1890

APPEAL from Randolph Circuit Court in Chancery, J. W. BUTLER, Judge.

Judgment reversed and cause remanded.

S. W Williams for appellant.

1. The rule of practice in equity cases is that the whole evidence will be sifted, and this court determines what the findings of the chancellor should have been, upon such evidence as was competent and proper, with due deference to the findings of the chancellor where the preponderance is nice. 43 Ark. 307; 41 Ark. 292; 44 Ark. 206; 34 Ark. 212.

2. The decision in 44 Ark. 564, is the law of this case. 10 Ark 186; 13 Ark. 103; 22 Ark. 176; 18 Ark. 292. Hence there is but one question in this case: the equitable ownership of the mortgages. As to this Caldwell had the highest and best evidence of ownership, tracing his title to Avandana Bros Possession is prima facie evidence of ownership, and raises a legal presumption of title. Abbott, Tr. Ev., pp. 389, 425, 623. The burden was on Meshew to prove Caldwell's possession unlawful, and of establishing title in himself. He has not done so.

The statements of Blanco after the agency terminated were not admissible in evidence as admissions to bind his principal. 1 Greenl., Ev. , sec. 114. The admissions must be made during the continuance of the agency in regard to a transaction then depending et dum fervet opus. 1 Greenl., Ev., sec. 114; 29 Ark. 530, 531.

The evidence proves beyond doubt the equitable title of Avandana Bros. to which appellant succeeded.

3. It was error to refuse to allow the proposed amendment. An amendment can be made at any time, even after decree and before enrollment. 1 Nash., Pl., 328; Newman, Pl., 721; How., Prac., 321; 1 Bush. 2; 1 Estee, Pl., sec. 162; Myer, Ky. Code, p. 422, note to sec. 156; Mansf. Dig., sec. 5075; 29 Ark. 323; 1 Dan., Pl. and Pr., p. 459; 33 Ark. 811.

4. If Meshew paid taxes without right, that gave him no lien on the land. 30 Ark. 600.

W. R. Coody for appellee.

Every question appears to have been settled by the former decision save Meshew's agency. 44 Ark. 564. As to this the burden on appellant, possession being no evidence of agency or transfer. 44 Ark. 567-8.

Under the stave contract no agency could exist--none being created by the terms of the contract, none can be established by parol. 30 Ark. 186; 29 Ark. 544; 35 Ark. 470.

The contract of Brown was in writing to build the boats for Meshew, and parol evidence was inadmissible to prove that Brown was to build the boats for Avandana instead of Meshew. 20 Ark. 293; 12 Ark. 125, 593.

Appellant had no right to amend in this case. Mansf. Dig., secs. 5077, 5080, 5026. No case has been cited by appellant where a court has allowed a plaintiff to allege certain facts constituting a cause of action, and then, upon failure to prove such allegations, allege and set up a different right or cause of action by way of amendment after proof and submission of the cause. Amendments are in the sound discretion of the court, and this court will not control that discretion unless grossly abused. 26 Ark. 360; 30 Ark. 393.

But if the amendments were allowed, it does not help appellant's case. The notes and mortgages were never assigned, voluntarily delivered or transferred to Avandana Bros. If not, they had no title; accident, mistake or fraud would not pass title either in law or equity. 1 Dan., Neg. Inst., secs. 741-3; 1 Jones on Mortg., sec. 813.

The chancellor has decided this case with all the evidence before him, and the decree should be affirmed unless the preponderance is clearly against his findings. 24 Ark. 443; 41 Ark. 219.

Even taking this case upon Blanco's theory, Avandana Bros. held only as collateral security, and could not sell them as negotiable paper or bind the assignor by any contract or incumbrance. They were simply trustees of a special trust, and Caldwell dealing with notice of the trust cannot take anything by his contract or purchase. 32 Ark. 58, 59; 1 Jones on Mortg., sec. 827; 2 Jones on Mortg., sec. 1789; 1 Jones on Mortg., sec. 817.

Admitting all appellant claims, Meshew is entitled to the mortgages after paying back the $ 500 which Henderson first paid for same, and is entitled to enforce the same for the surplus and the taxes paid. 7 S.Ct. 887.

The boats more than paid the advances made by Avandana; and Meshew is entitled to the notes and mortgages in any view taken of the case.

OPINION

HEMINGWAY, J.

This is a controversy between Geo. M. Caldwell and Thomas J. Meshew, each claiming to own two certain notes made by defendant Brown and two mortgages given as security therefor. One note and mortgage was executed to Thos. J. Meshew, while the other was executed to Hecht Bros. & Co. , and by them endorsed to him. Neither note or mortgage bears evidence of any endorsement by Meshew.

Caldwell alleged in his complaint that Meshew was the agent of Avandana Bros., merchants in New Orleans, and as such obtained all the instruments, and that he afterwards delivered them to his principals; that they, Avandana Bros., had transferred them without writing to Henderson, and he had transferred them for value to Caldwell. The complaint further stated that Meshew had at his own expense redeemed the lands from tax sale and paid the taxes for several subsequent years. It sought to fix the amount due Meshew for taxes and to foreclose the mortgages subject thereto.

Meshew denied that he was the agent of Avandana Bros., and that he obtained the notes as such; he alleged that he took the notes in the ordinary course of business, as his own property; that they were abstracted from a safe in which he kept his papers by one Blanco, who delivered them to Avandana Bros.; that he had never parted with his right to the instruments; and he asked a lien for taxes as set out above and a foreclosure of the mortgage. Other parties answered, whose pleading it is not essential to notice.

A great deal of evidence was taken and the cause was submitted. After its submission, Caldwell asked leave of the court to amend his complaint by striking out that part of it which alleged that Meshew was the agent of Avandana Bros. and as such obtained the notes and mortgages; and to substitute in lieu thereof the allegation that Blanco, as agent of Avandana Bros., advanced to Meshew the money, by means of which he obtained them, and that Meshew sold, transferred and delivered them to Avandana Bros. for the money so advanced by their agent.

The motion to amend was resisted by Meshew for the reasons: (1) that it came one year after the cause had been submitted; (2) that the amendment was inconsistent with the original complaint; (3) that it substituted a new issue after all the proof had been taken and some of the witnesses had died; and (4) that it was supported by no affidavit for its necessity. The court refused to permit the amendment to be made, and found in favor of Meshew as to the ownership of the instruments in controversy.

If there was no error in refusing to allow the appellant to amend his complaint, there was none in the final determination of the other matters. Meshew was not the agent of Avandana Bros., and there was no proof tending to establish such a relation. He was engaged in getting staves which they had agreed to purchase from him; the terms of sale were stipulated; and they agreed to advance him money to carry on his business. He engaged to deliver the staves in New Orleans, and it thereby became necessary for him to obtain boats for their transportation. He contracted with Brown, the maker of the notes, for the boats needed,...