Maxfield v. Jones

• Decision Date: 27 January 1913
• Citation: 153 S.W. 584,106 Ark. 346
• Parties: MAXFIELD v. JONES
• Court: Arkansas Supreme Court

153 S.W. 584

106 Ark. 346

MAXFIELD v. JONES

Supreme Court of Arkansas

January 27, 1913

Appeal from Independence Circuit Court; R. E. Jeffery, Judge reversed.

Judgment reversed and cause remanded.

R. A Dowdy and Oldfield & Cole, for appellant.

1. The claim was assigned "without recourse" and thus the assignor was relieved of all liability for failure to realize on the claim, 62 Ark. 595.

2. Parol evidence is not admissable to vary or contradict a written instrument. 67 Ark. 494; 73 Id. 431; 4 Cyc 111. The testimony of T. J. Jones was hearsay merely.

3. The court erred in its instructions, citing 6 S. R. A. 279; 52 F. 705; 3 Suth. on Damages, § 761. No damage was shown on account of the Jackson judgment. See 34 Ark. 323; 4 Thomps. on Corp. § 4725; Kirby's Dig. § 509. The liability of defendant did not depend upon the delivery of the note.

Samuel M. Casey, for appellees.

1. Appellees did not buy an account, but a note, and defendant was liable for fraudulent misrepresentations. 31 Cyc. 1559, 1561; 22 Ark. 517.

2. Parol evidence is admissable to show false and fraudulent misrepresentations, as to a written contract. 73 Ark. 542; 87 Id. 614. It is also admissable to show that the contract was executed conditionally. 88 Ark. 383.

3. Reviews the instructions and contends that there is no error. 74 Ark. 557; 76 Id. 472; 20 Cyc. 141.

OPINION

MCCULLOCH, C. J.

This is an action instituted in the circuit court of Independence County by T. J. Jones and J. H. Nash against Theodore Maxfield to recover the value of certain farming implements and machinery alleged to have been sold and delivered by the plaintiffs to the defendant in consideration of the assignment of a certain promissory note executed by one Jackson to the Theo. Maxfield Company, a corporation of which defendant was president. Jackson rented a farm in Independence County from said corporation to cultivate during the year 1905, and the parties (Jackson and the Theo. Maxfield Company) entered into a written contract concerning the transaction. Jackson owned the farming implements and machinery mentioned in this controversy, and after the expiration of his tenancy sold the same to the plaintiffs, taking their note for $ 210, the price thereof. Said corporation asserted a claim to the amount of about $ 400 as balance due from Jackson on the rent of the farm, and it made a written assignment of the claim to the plaintiffs in consideration of the sale of the aforesaid property. Subsequently Jackson sued plaintiffs for the amount of the note executed by them to him, and they attempted to set off the claim assigned to them by the Theo. Maxfield Company; but failed in that defense, and Jackson recovered a judgment against them for the sum of $ 170 and costs of the action, amounting to about $ 36. They then instituted this action against the defendant, Theodore Maxfield, alleging that he had falsely, fraudulently and deceitfully represented to them that the claim against Jackson was a valid claim and was evidenced by a promissory note, which had been lost or misplaced, and that they were induced by said false representations to accept an assignment of the claim without the note being produced on the further verbal promise that the note would be produced and assigned when found. They further alleged that defendant had agreed to assign the note without recourse but verbally guaranteed the validity of the note as a set-off against the note of plaintiffs to Jackson and agreed to make good the amount in the event they failed in their attempt to set off the claim against the Jackson note. The complaint contains two paragraphs, the second setting forth substantially the same facts as those set forth in the first paragraph, and the same amount of damages, towit: the sum of $ 250, is prayed for in each count. Said corporation was joined as defendant in the suit, but a motion was made by said defendants to require the plaintiffs to elect upon which paragraph of their complaint they would stand and as to which defendant they would proceed against; and thereupon the plaintiffs dismissed as to said corporation and elected to proceed against the defendant, Theodore Maxfield. He filed an answer denying that he made any false representations to the plaintiffs as to the value of the Jackson note, or that he guaranteed the validity of the claim, or that he agreed to make good any loss sustained by reason of their failure to successfully set off the claim against the Jackson note. He alleged that said corporation agreed to assign and transfer its claim against Jackson to plaintiffs without recourse, and did so assign it.

The trial of the cause resulted in a verdict and judgment in favor of the plaintiffs for the sum of $ 175 on the first paragraph and $ 35 on the second paragraph, and the defendant appealed to this court.

There is a conflict in the testimony as to whether or not Jackson ever executed to said corporation a promissory note. Jackson testified that he did not execute a note but merely entered into a written contract for the rent of the land at a stated price per acre, but that at the end of the crop season he compromised and settled the claim by paying a certain proportion of the proceeds of the crop raised on the farm. Defendant testified that a promissory note, in the sum of $ 500, the rental price of the farm, had been executed to the corporation by Jackson, and that a balance of about $ 400 remained unpaid. He testified further that the note was lost or misplaced at the time of the assignment of the claim to plaintiffs, but that he afterwards found the note and delivered it to an attorney at law who was representing the plaintiffs in their litigation with Jackson. The testimony adduced by plaintiffs tended to show that the note was never delivered to them.

It is undisputed that said corporation, acting through defendant, its president, executed and delivered to plaintiffs the following assignment in writing of the alleged claim of the corporation against Jackson:

"J. N. Jackson, To The Maxfield Company, Dr. To balance on note given for rent on that part of a farm belonging to the Theodore Maxfield Company, known as Prairie Beach, lying north of the turning row, $ 500. Credits: (Here follows list of credits, aggregating $ 149.91, and showing balance due on the note, after adding interest of $ 402.96.)

"(Endorsed on back:) For value received we hereby assign the within account to Jones and Nash, and transfer all our rights to the same to the said Jones and Nash, but without recourse on us for any part of same if said Jones and Nash fail to collect any part of same for any reason whatever. This June 20, 1908.

"(Signed):

Theo. Maxfield Company, Theo. Maxfield, President."

Plaintiffs testified that the defendant represented to them that he held the note of Jackson, on which there was a balance of $ 402 unpaid; that the note was lost or misplaced at the time, but that he would find it, if possible, and deliver it to them, and that on the faith of those representations they sold him the machinery and agreed to accept an assignment in payment therefor.

They were allowed, over defendant's objection, to testify that defendant also represented to them that they could use the note or claim as a set-off against their indebtedness to Jackson and guaranteed that, if they had any trouble over the note, he would make good the loss. They admitted that they...