Clark v. French
| Decision Date | 16 April 1917 |
| Docket Number | 19026 |
| Citation | 74 So. 824,114 Miss. 185 |
| Court | Mississippi Supreme Court |
| Parties | CLARK v. FRENCH |
APPEAL from the circuit court of Claiborne county, HON. E. L. BRIEN Judge.
Action of replevin by C. B. Clark, trustee against C. A. French trustee. From a judgment for plaintiff, defendant appeals.
The facts are fully stated in the opinion of the court.
Judgment reversed, and cause remanded.
R. B Anderson and J. T. Drake, for appellant.
We believe that the trial court, in making its rulings, assumed the absolute truth of Clark's testimony, and he would not have been justified in granting the instruction upon any other assumption. It is proper, however, to state that the trial judge must have disregarded Clark's statement that the addendum to the receipt in question was a forgery. If he did so, he was in error. Clark testified positively that these words were added without his knowledge, and after his signature and delivery of the receipt to Parsons. This made this question a question for the jury, and not a matter to be passed upon by the court. Even if the addendum and the receipt had been written with identically the same ink, it would still have been a question for the jury, for the reason that the whole, and not a part, is stated by Clark to have been the work of Parsons, and it will be reasonable to believe that he had written both with the same pen and the same ink. However, this receipt is now before the court, and the examination of it in a strong light will powerfully corroborate Clark's evidence. The main receipt is written in ink with a brown base, while the part charged by Clark to be forged is written in ink with a purple base. This may not be apparent in a weak light, but in a strong light it stands out most clearly.
We find nothing else in the way of a legal proposition in appellee's brief to answer. There is nothing in the evidence to indicate that Clark knew that Parsons was a crook. McCabe certainly knew it. Clark did make every possible effort to get the papers back from Parsons after the latter's bad faith became apparent. Counsel for appellee says that it is true that it was a risky business on McCabe's part, but that he took what he could get. This is at the bottom of the matter. McCabe knew that the paper had been dishonored. He had every reason to suspect that Parsons had no title. He was in possession of facts which, if followed up, as could readily have been done, would have shown him not only Parson's fraud, but J. W. Clark's lack of power to make the transfer of the papers as named in the receipt. The two cases cited upon page 5 of appellee's brief, have no bearing upon this case. They simply hold that a court of law cannot marshal assets.
We see no possible phase of the case which would justify a peremptory instruction for defendant, but we think that the plaintiff is clearly entitled to such instruction.
C. A French, for appellee.
If J. W. Clark has any right to win this case, and no one else but he is trying to beat McCabe in this case, then he must do it on the assumption that the receipt that J. W. Clark gave Parsons was a forgery; that is all he has to stand on.
The plaintiff, asked for, and offered the receipt which was in the possession of the defendant, the plaintiff asked for it in court, and it was delivered, while Clark was on the witness stand, and offered as exhibit C to the testimony of Clark, page 47, of Record.
Then Clark proceeded to swear that the receipt was a forgery, as to the material part of it. In other words he set up a man and then undertook to knock him down. This he was estopped from doing, by his own testimony; the burden was on him to prove that any part of that receipt was a...
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