Orgill Bros. & Co. v. Polk

• Decision Date: 25 November 1929
• Docket Number: 28203
• Citation: 155 Miss. 492,124 So. 649
• Parties: ORGILL BROS. & CO. v. POLK
• Court: Mississippi Supreme Court

124 So. 649

155 Miss. 492

ORGILL BROS. & CO. v. POLK

No. 28203

Supreme Court of Mississippi

November 25, 1929

Division B

1 EVIDENCE. Receipt contractual in terms cannot be varied by parol evidence, and prior agreements and conversations are inadmissible.

A receipt contractual in its terms is not subject to be changed by parol evidence, and agreements and conversations had prior to the giving of said receipt, when contractual in its nature, are not admissible to vary the terms of the receipt. The instrument in such case is the exponent of its own terms.

2 PLEADING. Statutory notice of matter in avoidance is substitution for formal pleading, but does not dispense with pleading or notice; plaintiff, desiring to avoid, for fraud in procurement, contractual receipt pleaded by notice under general issue, must give notice under general issue in avoidance, or file special plea (Hemingway's Code 1927 section 541).

Under section 541, Hemingway's Code 1927 (section 744, Code 1906), providing that, if the defendant desires to prove under the general issue affirmative matter in avoidance, he may give notice under the general issue in writing, and providing that, if the plaintiff wants to give special matter in avoidance of the matter so pleaded by the defendant, he may do so by written notice, this notice is a substitution for formal pleading, but does not dispense with pleading or notice, and, where a defendant pleads an instrument under the general issue by giving notice thereunder, an instrument in the nature of a receipt constituting a contract, and the plaintiff desires to avoid such receipt or contract on the ground of fraud in its procurement or misrepresentations made prior to the giving of the same, he must either give the notice under the general issue in avoidance thereof or file a special plea stating the facts relied upon to avoid the instrument or notice, and, where such notice is not given or plea filed, evidence of fraud in the procurement of the instrument relied on will not be received.

HON. EARL RICHARDSON, Judge.

APPEAL from circuit court of Rankin county, HON. EARL RICHARDSON, Judge.

Action by Orgill Bros. & Co. against E. H. Polk. Judgment for defendant, and plaintiff appeals. Affirmed.

Judgment affirmed.

Chambers Trenholm, of Jackson, for appellant.

A receipt is only prima-facie evidence, and may be altered or contradicted by parol.

Butler v. State, 81 Miss. 734, 33 So. 847; Swan v. Southern Express Co., 53. Miss. 286; Fowlkes v. Lee, 84 Miss. 509, 36 So. 1036; Dewees v. Bostick Lbr. & Mfg. Co., 96 Miss. 253, 50. So. 865.

Parol evidence is admissible to show a condition precedent to the taking effect of an agreement in writing.

Ohio Pottery & Glass Co. v. J. R. Pickell & Son, 108 Miss. 51, 66 So. 321; Schlater Mercantile Co. v. Brinly-Hardy Co., 109 Miss. 300, 68 So. 444.

Fraud upon the part of one of the contracting parties may be proven by parol to vitiate the contract.

Marsh v. Lisle, 34 Miss. 173; Wren v. Hoffman, 41 Miss. 616; Patten Worsham Drug Co. v. Planters Mercantile Co., 86 Miss. 423, 39 So. 209; Howie Bros. v. Walter Platt & Co., 83 Miss. 15, 35 So. 216; Butler v. State, 81 Miss. 734, 33 So. 847; Blair v. Russell, 120 Miss. 108, 81 So. 785; Henry v. W. T. Rawleigh Co., 152 Miss. 320, 120 So. 188; Dana v. G. & S. I. R. R. Co., 106 Miss. 497, 64 So. 214.

W. E. McIntyre, of Brandon, and Enochs & Enochs, of Jackson, for appellee.

A contract cannot rest partly in writing and partly in parol.

Thompson v. Bryant, 75 Miss. 12, 21 So. 665.

The instrument involved herein is more than a receipt. It is a receipt insofar as the reception of the tractor is concerned and as to the reception of the tractor, may be contradicted. But the rest of the receipt is the contract of purchase of the tractor.

Johnson v. Johnson, 74 Miss. 549, 21 So. 147.

Whether the offered evidence be considered as proof of a warranty of quality, or of fraud in the procurement of the purchase of the tractor, it is special affirmative matter of which the appellant should have filed a written notice to the appellee of his intention to offer the same in evidence in avoidance of the special matter so given notice of by the appellee.

Section 744, Code 1906, sec. 527, Hemingway's 1917 Code.

OPINION

Ethridge, P. J.

Orgill Bros. sued the appellee, Polk, in circuit court upon three promissory notes, two for four hundred fifty dollars each, and one for three hundred fifty-two dollars and forty-four cents, together with attorney's fees. To his declaration the defendant pleaded payment and satisfaction of the notes by the sale of certain machinery, making a receipt in the following language a part of the said plea.

"Memphis, Tenn., 10/20/1925.

"Received of E. H. Polk, one, ten-ton Holt Tractor in settlement of three notes held by us that are to be turned over to Mr. Polk at a later date.

"ORGILL BROS. & CO.

"J. M. WILLIAMS, CO. MGR."

There was no counter-notice under the general issue, nor any plea in reply to this notice attacking the validity of the receipt by the plaintiff; but the plaintiff attempted to prove in court, without replying to the notice or without pleading thereto, that the real agreement was not expressed in the receipt; and that the receipt was given upon a representation that the tractor was in good operating condition; and that in fact it was not in such condition, but worn out and practically worthless.

The court refused to receive such evidence tending to contradict or enlarge the terms of the receipt, and refused the evidence tendered by the plaintiff to show misrepresentation. A peremptory instruction was granted for the defendant. The appellant relies upon that line of cases that held that fraud may be shown to avoid an instrument upon the principle that the instrument was...