McInnis v. Manning

• Decision Date: 01 September 1922
• Docket Number: 23072
• Court: Mississippi Supreme Court
• Parties: MCINNIS v. MANNING

95 So. 250

131 Miss. 119

MCINNIS v. MANNING

No. 23072

Supreme Court of Mississippi

September 1, 1922

APPEAL from chancery court of Simpson county, HON. D. M. RUSSELL Chancellor.

Suit by A. K. McInnis against G. L. Manning. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

C. M Whitworth, for appellant.

The litigants, herein, were jointly interested in two sawmills located at Byrd and Shivers, Mississippi. In the dissolution of their interest, Manning conveyed all the interest he had, to McInnis in the mill at Byrd, and McInnis, conveyed all the interest he held to Manning in the mill at Shivers, as is shown by the exhibits "A" & "B" on pages 7 and 9 respectively. The only item in controversy is the sixteen hundred and twenty-four dollars and ninety-eight cents arising from the proceed of lumber manufactured and sold by Manning from the Byrd mill, Manning, along with other property, conveyed "all accounts, money, etc., owned by the Long Leaf Lumber Co. and myself." This language is clear, unambiguous and unsusceptible to but one meaning, and that is all accounts, money, etc., arising from the operation of the Byrd sawmill on hand was conveyed under exhibit "a" to A. K. McInnis. On pages 43 and 44, Manning states that he, between the 16th and 22nd of April, withdrew this sixteen hundred and twenty-four dollars and ninety-eight cents from the bank, without authority from any one except the unsigned and unexecuted agreement marked exhibit "1," pp. 58 and 59. Can exhibit "1" purporting to be a copy of a contract, be considered a contract itself? If it cannot then the defendant, Manning, has no standing in court. 9 Cyc. 280-281. "Where parties are merely negotiating as to the terms of an agreement to be entered into between them there is no meeting of minds while such agreement to be entered into between them, is incomplete. Thus where they intend that their verbal negotiations shall be reduced to writing as the evidence of the terms of their agreement, there is nothing binding on them until the writing is executed."

Could the contract--exhibit "1" be enforced, or any of its terms? If it cannot, then how can it be tacked on and become a part of the conveyance marked exhibit "A," pp. 7-8 of the bill of complaint? The parties, consideration and terms are different. It is unsigned, unexecuted and died in still-birth. It is void, destitute of legal effect, and should not be considered as evidence or in any respect in the determination of this cause. Watson v. Kirb, 20 So. 624, an Alabama case. The court said, on page 626: "This contract is complete in itself and must be regarded as sole memorial of the agreement of the parties as then made. Prior or contemporaneous statements or stipulations which add to or vary the effect of the writing cannot be received."

The conveyance under exhibit "A" between McInnis and Manning is the sole memorial of their agreement and other agreements and statements cannot be received to change its effect. I therefore respectfully submit that this case ought to be reversed and a decree entered for sixteen hundred and twenty-four dollars and ninety-eight cents with all accrued interest and cost for and in behalf of appellant.

Hilton & Hilton, for appellee.

It will be noted that counsel in his very able brief relies on the proposition that the memorial in writing expressed what the parties intended and it is the arbiter of the rights of the parties here. We are perfectly willing to submit the cause on the record as made here which embraces the deed; and we confidently rely on the deed if taken and construed so as to harmonize the various paragraphs, as upholding our contention. As we understand the law, this is the first rule applied to its construction and interpretation and in applying this rule parole evidence is resorted to, to aid the interpretation. If the instrument can be harmonized by applying this rule, the second resort is to let it stand as an ambiguous instrument, and again parole evidence is resorted to, to arrive at the intention of the parties. As said in the Hart case, supra, the proper end of all rules of construction is to effect the intention of the parties to the instrument and this is true of deed as well as other writings.

OPINION

ETHERIDGE, J.

The appellant brought suit in the chancery court to recover from the appellees certain moneys claimed to be due him under a contract or a conveyance dated April 21, 1920, in which Manning conveyed to McInnis a one-half interest in a certain partnership, and also to certain timber described in the said deed, the said deed being a conveyance of all interest in the Long Leaf Lumber Company and of himself under a partnership arrangement between them. The conveyance, after describing the timber, etc., reads:

"I also convey to the said A. K. McInnis my one-half interest in and to two yoke teams, equipped with wagons, chains, yokes tools, etc., also whatever interest in all the lumber manufactured by the Long Leaf Lumber Company, my interest in and to all tools and other interest and equipments owned jointly by myself and the Long Leaf Lumber Company, all accounts, money, etc., owned by the said Long Leaf Lumber Company and myself. It is the intention of this instrument to convey to the said A. K. McInnis all my property rights rights of action, and other interest I may own in the said copartnerships with the Long Leaf Lumber Company, J. W. McInnis, J. D. Byrd, Charley Byrd, Joe Byrd, T. J. Byrd, and all other matters of interest pertaining to the above-named persons and copartnerships with regard to my interest at Byrd, Mississippi. I also quitclaim my accounts for feed supplies and other expenses incurred on account of my interest in the aforesaid copartnerships, and agree to cancel all such as may be due or owing me by virtue of my relation to the aforesaid interest. I also agree to discharge all matters of debt due and owing by me as balance...