McArthur v. Fillingame

• Decision Date: 06 March 1939
• Docket Number: 33613
• Citation: 184 Miss. 869,186 So. 828
• Court: Mississippi Supreme Court
• Parties: MCARTHUR et al. v. FILLINGAME

186 So. 828

184 Miss. 869

MCARTHUR et al. v. FILLINGAME

No. 33613

Supreme Court of Mississippi, Division A

March 6, 1939

APPEAL from the circuit court of Perry county HON.W. J. PACK, Judge.

Action in debt by H. McArthur and others against J. A. Fillingame to recover balance due under the last renewal of a conditional automobile sales contract. From an adverse judgment plaintiffs appeal. Reversed and remanded for new trial.

Reversed and remanded.

M. M Bush and E. C. Fishel, both of Hattiesburg, for appellants.

We complain of the action of the court in permitting the appellee, over the objection of the appellants, to introduce evidence, which tended to vary, alter, change and contradict the terms of the written contract between the parties and the subject of this suit.

That a written contract cannot be varied by parol testimony is elementary law in Mississippi.

Orgill Bros. & Co. v. Polk, 124 So. 649, 155 Miss. 492; Welford & Withers v. Arnold, 140 So. 220, 162 Miss 786; Cox v. Timlake, 153 So. 794, 169 Miss. 568; Continental Jewelry Co. v. May, 140 So. 525, 162 Miss. 873; State Highway Dept. v. Duckworth, 172 So. 148, 178 Miss. 35; Watkins v. Poag, 112 So. 473, 154 Miss. 222; Tropical Paint & Oil Co. v. Mangum, 125 So. 248, 155 Miss. 876; Edrington v. Stephens, 114 So. 387, 148 Miss. 583; Cooper v. Robertson, 77 So. 953, 117 Miss. 108; N. O. & N.E. R. R. Co. v. Lott, 71 So. 1, 118 Miss. 50; Pritchard v. Hall, 167 So. 629, 175 Miss. 588.

Person alleging fraud must prove it by clear and convincing evidence.

Metropolitan Ins. Co. v. Hall, 118 So. 826, 152 Miss. 413; Columbian Mutual Life Ins. Co. v. Harrison, 154 So. 722, 170 Miss. 121; Dowling v. Whites Lbr. Co., 154 So. 703, 170 Miss. 267; Martin v. Gill, 181 So. 849; Railroad Co. v. Turnbull, 71 Miss. 1029, 16 So. 346; New York Life Ins. Co. v. Gill, 182 So. 109; McCain v. Cochran, 153 Miss. 237, 120 So. 823.

At the conclusion of the taking of the evidence and when both plaintiff and defendant had rested their case appellants made the usual motion for a peremptory instruction, and in addition thereto the court refused the appellants a peremptory instruction. This action of the court was error for at least two reasons. 1. The appellee had not sustained either of his pleas by sufficient and competent evidence. 2. The instrument upon which this suit is predicated, being a renewal of the indebtedness growing out of the transaction wherein fraud is alleged, and this renewal being made after notice by the purchaser of the defects, constituted a complete waiver and estoppel.

Pritchard v. Hall, 167 So. 629; Industrial Finance Co. v. Wheat, 107 So. 382, 142 Miss. 536.

There is no implied warranty of a used motor vehicle.

Williams v. McLain, 176 So. 717, 180 Miss. 6.

Therefore, the only warranty that could have been given was an express one, and as the written contract excluded any warranty or guaranty then any evidence to the effect of the existence of such a warranty was incompetent.

We are confident that the action of the appellee in retaining his car when he ascertained and had full knowledge of the alleged breach of warranty, and thereafter in December giving the first renewal contract and later in July of the following year, exactly eleven months after having full knowledge of the fraud he alleged and full knowledge of the breach of warranty, giving a second renewal contract, constituted a complete waiver and estoppel, and that the renewal would be sufficient consideration for the new contract, but the facts also show an additional consideration aside from this, that is, the insurance on the last of the renewals, and the first renewal repairs done by appellee on the motor, together with some other small items.

Cherokee Mills v. Conner, 145 So. 735, 164 Miss. 703; Brewer v. Automobile Sales Co., 147 Miss. 603, 111 So. 578; Memphis Automatic Co. v. Chadwick, 146 So. 137, 164 Miss. 635; Tallahatchie Home Bank v. Aldridge, 153 So. 118, 169 Miss. 597; Gay v. First National Bank, 160 So. 904, 172 Miss. 681; 8 C. J., sec. 1007; Commercial First Nat. Bk. v. Merkel, 97 Miss. 824, 53 So. 350.

In this case, a suit on a negotiable instrument, where the only defenses were fraud and a plea of payment, and wherein the defendant himself had given testimony as to the ownership of the paper, showing conclusively that the plaintiffs were the owners as well as payees, notwithstanding the affirmative defenses, and the burden of proving them being on his who alleges or affirms, the court gave the following instruction: "The court instructs the jury for the defendant that the burden of proof is on the plaintiff to show by a preponderance of the testimony that he is entitled to recover before you are justified in returning a verdict for the plaintiff and if the plaintiff has failed to do this, then under your oaths it is your sworn duty to find for the defendant."

The only answer or argument that we care to advance as our authority that the giving of this instruction is fatal and reversible error, that is impossible to be cured by other instructions, is the following brief quotation from the case of Georgetown Mercantile Co. v. Steen, 125 So. 120, 155 Miss. 719: "Payment is an affirmative defense and the burden is on him who pleads it. He who asserts the affirmative must prove it."

C. C. Smith, of Richton, and H. D. Young, of New Augusta, for appellee.

In answer to appellants' assignments of error complaining of the court's action in permitting the appellee to introduce testimony to vary the terms of a written instrument we merely direct the court's attention to the following cases, which are in point here, to-wit: Nash Miss. Valley Motor Co. v. Childress, 156 Miss. 157, 125 So. 708; Lizana v. Edwards Motor Sales Co., 163 Miss. 266, 141 So. 295; Laurel Auto Supply Co. v. Sumrall, 185 So. 566.

We submit that the appellant, plaintiff below, was not entitled to a peremptory instruction and the court committed no error in submitting the matter to the jury for the reason that the testimony in this case shows that appellee was induced to purchase this automobile through the misrepresentations of appellant 's salesman and that all through the entire transaction the appellant was promising to adjust the matter and appellee was induced to sign the renewal contracts through the promises of appellant to make an adjustment of the damages, this testimony is not denied by appellant and was amply sufficient to warrant the court in submitting the question to the jury for its consideration.

OPINION

Griffith, J.

On August 31, 1935, appellee purchased from appellants a secondhand Ford automobile, 1933 model, and executed, as evidencing the purchase price, a conditional sales credit contract for $ 526.56, payable in monthly installments. On December 11, 1935, appellee renewed this contract for $ 593.56, and again on July 31, 1936, for $ 669; and as additional security for that amount, to-wit $ 669, appellee gave on the date last mentioned, and as a part of the renewal, a deed of trust on some livestock. The increased amount in these renewals represented repairs or replacements made since the original purchase, together with interest and insurance after crediting such small payments, if any, as had theretofore been made.

Appellee kept and used the car until May, 1938, when it was repossessed by the sellers under the conditional contract, and was sold at public outcry for $ 75. Thereafter appellants instituted this action in debt against appellee, claiming a balance under the last renewal contract of $ 229 principal, with interest and attorney's fees, as stipulated in the contract.

Appellee interposed the defenses (1) of payment, and (2) that appellants at...