Gross v. Todd

• Decision Date: 21 December 1908
• Citation: 47 So. 801,94 Miss. 168
• Court: Mississippi Supreme Court
• Parties: FRANKLIN M. GROSS v. JAMES H. TODD ET AL

47 So. 801

94 Miss. 168

FRANKLIN M. GROSS v. JAMES H. TODD ET AL

Supreme Court of Mississippi

December 21, 1908

October 1908

FROM the circuit court of Pontotoc county, HON. EUGENE O. SYKES Judge.

Gross appellant, was plaintiff in the court below; Todd and another, appellees, were defendants there. From a judgment in plaintiff's favor for a sum much less than his demand plaintiff appealed to the supreme court.

The suit was upon the second of a series of three promissory notes given appellant by appellees; the first note was for $ 50 and the others for $ 100 each, and they were all executed by appellees as a consideration for the investiture in one of the defendants of an interest in the business of the appellant, evidenced by the following writing:

"Contract. Oct. 11, 1902. State of Misssissippi, Pontotoc county: This agreement between F. M. Gross and J. H. Todd, which formed a partnership in overhauling machinery as full partners anywhere in the south and southwest and northwest, and the proceeds to be equally divided as the work is done. He, J. H Todd, would do everything in his power to learn and assist F. M. Gross in carrying on this year's work. J. H. Todd agrees to put in all of his time from the 1st of October, 1902, to October 1, 1903. To secure F. M. Gross in the performance of this work he puts in one mare called Maud, one-half set harness, one-half machine wagon, one-half of tools and fittings which is his property, which now is at J. H. Todd's house, Thaxton, Mississippi, valued at about four hundred and fifty ($ 450.00) dollars. Should J. H. Todd fail to perform his part of this contract, said property shall revert to F. M. Gross.

"(Signed) J. H. TODD."

On the trial it was shown that separate suits had been brought by Gross on each of the three notes, and that at a former term of court judgment had been rendered in the first suit on the note for $ 50; the jury in that suit having passed upon the defense of a failure of the consideration for which the notes were given and, by finding a verdict in plaintiff's favor for only $ 5, had thereby decided that the defendants were entitled only to a credit of $ 45, because of a partial failure of the consideration for which all the notes were given. On the trial of the present case the appellees were permitted to make the same defense, and the jury returned a verdict in plaintiff's favor for $ 12.50.

Reversed and remanded.

Mitchell & Mitchell, for appellant.

As the contract between the parties was in writing, it was error to permit parol evidence to be offered to show that appellant was to teach Todd, appellee, a trade. Every agreement of the two parties was written in the contract, and it of course spoke for itself. The only consideration for the notes was the interest bought from Gross by Todd in the tools, fittings and wagon. No effort is made to show that these things were not as represented or that Todd did not receive them, but the only defense was that Gross did not carry out the partnership agreement. Now, no violation of the partnership agreement could be available as a defense to the non-payment of the notes; for Todd got what he bought, namely, a joint ownership with Gross in the tools and other property mentioned in the written contract.

Todd the appellee, testified that he had no defense to the $ 100 note in question except that which he had already pleaded in the former suit of Gross against him on the $ 50 note; and it is shown that in the former suit the value of that defense had been passed upon by a competent jury and verdict and judgment rendered as to same. In other words, the jury, in the former suit,...