Finch v. Branham

• Decision Date: 03 October 1927
• Docket Number: 26560,26561
• Citation: 114 So. 257,148 Miss. 137
• Court: Mississippi Supreme Court
• Parties: FINCH v. BRANHAM (two cases). [*]

114 So. 257

148 Miss. 137

FINCH v. BRANHAM (two cases). ^[*]

Nos. 26560, 26561

Supreme Court of Mississippi

October 3, 1927

APPEAL from chancery court, of Walthall county.

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1. FRAUDS, STATUTE OF. Contract for pwrchase of corn over telephone held not within statute, when later confirmed by correspondence.

Contract for purchase of corn made over the telephone held not within the statute, when taken together with subsequent correspondence between parties immediately following conversation over telephone confirming the transaction.

2 EVIDENCE. Testimony of understanding as to number of bushels in carload of corn held admissible in action for breach of contract for purchase.

In action for damages for breach of contract for purchase of a number of carloads of corn, testimony of understanding as to number of bushels contained in carload as between traders in that commodity held admissible.

3 WITNESSES. Wife held properly required to testify with reference to consideration for conveyance of property by husband to her.

In suit to recover for breach of contract to purchase corn and to set aside conveyance of real estate by defendant to wife testimony of wife held admissible with reference to consideration for conveyance of property to her; common-law rule relative to wife testifying against her husband being inapplicable in that, after conveyance, husband could claim no interest in land.

HON. ALLEN Cox, Chancellor.

HON. ALLEN COX, Chancellor.

Suit by B. C. Branham against Mrs. Sallie Finch and T. A. Finch. Decree for complainant, and defendants separately appeal. Affirmed and remanded.

Decree affirmed.

McKeigney & Latham, for appellants.

I. The complainant's bill must fall before the demurrer unless the alleged contract of sale meets the requirements of the statute of frauds. This the alleged contract fails to do.

There was no delivery of the corn alleged to have been sold, either in whole or in part. There was no payment of the purchase price, either in whole or in part. There is no written contract signed by T. A. Finch, the person sought to be charged. There is no memorandum of the alleged bargain, signed by T. A. Finch or his agent authorized to sign for him.

The letters do not inform the court of the terms of a contract within the meaning of the law. The mind cannot have a clear conception of what the parties were corresponding about by examination and inspection of the letters. Parol evidence would be necessary to explain in order to give contractual meaning to the letters; and as parol evidence is not competent to supply what the parties did not say in writing, the bill must fail.

The quantity of corn is not mentioned. If it be said that the quantity was five cars, we submit that this will not do, since all cars are not of the same capacity. Fisher v. Kuhn, 54 Miss. 480. See, also, Craft v. Lott, 40 So. 426. The varying quantities contained in the several cars, as set forth in Exhibit "F," make a large difference, by way of comparison, in the money liability of T. A. Finch. How much money was he to pay for the corn? There is no way to determine this but from the price per bushel and the number of bushels purchased. The letters exhibited to the bill furnish no basis upon which to determine the sum of money which T. A. Finch should pay to B. C. Branham. Details must be stated. Bonds v. Lipton, 85 Miss. 209, 37 So. 805.

The complainant alleges that he and the respondent understood that a car of corn contained approximately seven hundred fifty bushels. The exhibit is silent as to this. Where the averments of the bill and the exhibits conflict, the exhibits prevail. House v. Gumble, 78 Miss. 259, 29 So. 71; McNeill v. Lee, 79 Miss. 455, 30 So. 821; Griffith's Ch. Pr., section 192, and authorities there cited.

II. Appellee should not have been permitted to testify over objection as to the trade understanding of what is meant by a car of corn. Since all cars are not of the same capacity, there can be no trade understanding. Then, too, this is a matter that could have been taken care of only by the terms of the contract of sale; as complainant's written memorandum is silent as to the "trade understanding" and silent as to the quantity the cars should contain, he should not have been permitted to supply by parol testimony an element necessary to complete his alleged contract of sale. This was error.

III. Another assignment of error has to do with the action of the court in compelling the appellant, Mrs. Sallie Finch, to testify relative to the consideration of the deed made to her by her husband, the appellant, T. A. Finch. Under our law neither was a competent witness against the other. Neither was a competent witness for complainant in this litigation. And this is true whether they were both necessary parties to the bill or not. Section 1576, Hemingway's Code; Leach v. Shelby, 58 Miss. 681; Virden v. Dwyer, 78 Miss. 768, 30 So. 45; Spencer v. O'Bryant, 106 So. 6.

In the case at bar the wife was forced to testify at the instance of the adversary of both herself and her husband. This should not have been done. The action of the court below, we submit, was erroneous and of such serious character as to require reversal.

A. J. McIntyre, for appellee.

I. This contract entered into between appellee, B. C. Branham, and appellant, T. A. Finch, on November 20, 1924, was not void by reason of the statute of frauds. Section 3123, Hemingway's Code (section 4779, Code of 1906).

While it is true that the contract was made over the telephone, immediately following the telephone conversation appellee wrote T. A. Finch a letter, which he registered, confirming the telephone conversation and proceeding to give him the number of cars of corn purchased, the price per bushel for said corn, the weight of said corn per bushel, and the date for the shipping of said corn.

Appellant wrote appellee a letter acknowledging receipt of the registered letter, giving his reasons for not answering sooner and telling him that he did his principal business with the Bank of Eupora but advising him further that he could draw on him through either bank.

The terms of the contract having been fully and completely stated by appellee in his letter and the response of T. A. Finch, in which he acknowledges receipt of this letter and authorizes him to draw on him through either bank at Eupora, are sufficient to take the case out of the statute of frauds. Willis v. Ellis, 98 Miss. 197, is conclusive in this case.

The letters which passed between Branham and Finch are very much clearer as to what the real contract was and leave no question as to the legality of the contract.

II. Section 3120, Hemingway's Code, makes every gift, grant or conveyance of land, etc., which is made to defraud creditors of their just and lawful actions, or to hinder or delay them, fraudulent; and there can be no question in this case but what the conveyance by T. A. Finch of all his property, both real and personal, on November 2, to his wife, Mrs. Sallie Finch, was without consideration.

The court will further bear in mind that as to the issue between appellee and appellant, T. A. Finch, Mrs. Finch was not permitted to testify on that question in any particular, but when she was called upon to testify, it was not against the interest of her husband; for as above shown, T. A. Finch had no interest in this land whatever, and she was therefore called upon to testify simply and solely as against her own interest, and this she did.

OPINION

HOLDEN, P. J.

The suit is in equity by B. C. Branham, appellee, operating as the Cash Grain Company, against the appellants T. A. Finch and his wife, Mrs. Sallie Finch, to recover for the breach of a contract to purchase five carloads of corn, and also to set aside as fraudulent a conveyance of certain real estate from Mr. Finch to his wife, alleged to have been made to defeat the collection of the claim of the appellee against the appellants. From a decree for four hundred twenty dollars and seventy-three cents against the appellant T. A. Finch and an order setting aside the conveyance by Finch to his wife and impressing a lien upon the land for the amount recovered, this appeal is prosecuted.

The case, in short, may be stated as follows: The appellee, Branham, was engaged in the hay and grain business at Union City, Tenn., and was operating under the name of the Cash Grain Company. The appellant T. A. Finch, at Eupora, Miss., ordered over the long-distance telephone five cars of corn from the Cash Grain Company, to be shipped to him at Eupora at agreed prices ranging from one dollar and thirty-two cents to one dollar and thirty-five cents per bushel, delivered at Eupora; a car was to be shipped each week until the five cars were delivered.

Immediately following the sale of the corn by the appellee to the appellant over the telephone, appellee, grain company, wrote a letter to Finch confirming the sale, together with the terms thereof, and asked appellant what bank he should draw a draft through for the corn as shipped; this letter is in the following form:

"10/20/24.

"Mr T. A. Finch, Eupora, Miss.--Dear Mr. Finch: We beg to confirm our conversation over phone of today resulting in us selling you five cars of choice Tenn. Snap corn as follows.

"The first car to be shipped 15th of November, second car 23d November, at one dollar and thirty-two cents per bushel, delivered Eupora, Miss., seventy-two pounds to the bushel.

"And the other three cars to be shipped each week thereafter at one dollar and thirty-five cents per bushel delivered same place, all shipments subject to your inspection on arrival and weights guaranteed.

"We wish to thank you for this business and assure you that we will give you the...