Parchman v. Frazier

• Decision Date: 18 April 1932
• Docket Number: 29894
• Citation: Parchman v. Frazier, 141 So. 275, 163 Miss. 317 (Miss. 1932)
• Court: Mississippi Supreme Court
• Parties: PARCHMAN et al. v. FRAZIER

141 So. 275

163 Miss. 317

PARCHMAN et al. v. FRAZIER

No. 29894

Supreme Court of Mississippi

April 18, 1932

Division A

ASSIGNMENTS.

Evidence Held insufficient to establish assignment of debt sued on to bankrupt corporation as successor to business formerly conducted by partnership.

HON. R E. JACKSON, Chancellor.

APPEAL from chancery court of Coahoma county, HON. R. E. JACKSON Chancellor.

Suit by T. A. Frazier, trustee in bankruptcy of the Baltzer Mercantile Company, against Hal Parchman and another. Decree in favor of the plaintiff, and the defendants appeal. Reversed, and the bill dismissed.

Reversed and bill dismissed.

Leftwich & Tubb, of Aberdeen, and Brewer & Brewer, of Clarksdale, for appellants.

The minutes so frequently referred to conclude with the statement that appellants have executed a bill of sale conveying the assets to the corporation. If there was an oral agreement to convey why the necessity of referring to the bill of sale in the minutes and why was the bill of sale executed.

There was no proof that the account or indebtedness, if any there was, was ever sold, transferred or assigned to the Baltzer Mercantile Company, Inc. And if such was never assigned or transferred to the corporation, it never became an asset thereof, and appellee, the trustee in bankruptcy, never acquired any right thereto.

W. W. Venable, and Roberson & Cook, all of Clarksdale, for appellee.

The issue of fact was whether the farm account was sold and contracted to be sold to the Baltzer Mercantile Company, a corporation, as an existing liability of the farming co-partnership due and payable by appellants, in consideration of the assumption by the corporation of the indebtedness owed by appellants in their partnership mercantile business conducted by them in conjunction with Mr. Strickland. The Chancellor found that such was the fact. A finding of fact by the chancellor will not be disturbed where there is evidence upon which to found it.

Where there is some conflict in the evidence appellate courts will accept the evidence of the successful party, and from that determine whether or not the chancellor's decree must be upheld.

Biles v. Walker, 121 Miss. 98.

All facts necessary to support the judgment, either directly proven or reasonably inferable from the proven facts will be taken as true.

Powell v. Tomlinson, 129 Miss. 658.

A judgment is presumed correct where there is any possible state of facts to justify it.

Bates v. Strickland, 139 Miss. 636.

The presumption in favor of the correctness of a decree of a chancellor includes conclusions both of law and of fact. It will not be disturbed unless shown to be clearly wrong.

Partee v. Bedford, 51. Miss. 84.

To overcome the presumption of correctness the record must affirmatively show that injustice has been done.

Rhymes v. Boggess, 146 Miss. 707; Jackson v. Banks, 144 Miss. 392; Gin Co. v. Greenville, 138 Miss. 876; Bacot v. Holloway, 140 Miss. 120; Fidelity, etc., Co. v. Cross, 131 Miss. 632; Jackson v. Mimms, 123 Miss. 78; Heard v. Cottrell, 100 Miss. 42.

The contract between appellants and the Baltzer Mercantile Company, the corporation, was partly in writing and partly in parol. Their promise to transfer the assets were verbal, and the promise of the corporation to assume the mercantile indebtedness was in writing, as was also the identification of the accounts receivable.

The minutes identify the bills receivable which are to be transferred. These agreements cannot be varied by parol.

Kendrick v. Robertson, 145 Miss. 585; Maas v. Sisters of Mercy, 135 Miss. 505; English v. New Orleans, etc., Ry. Co., 100 Miss. 809; McPherson v. Richards, 134 Miss. 282; Colt v. Hinton, 143 Miss. 800; Dodge v. Cutrer, 101 Miss. 844.

Argued orally by W. W. Venable for appellee.

OPINION

Smith, C. J.

The Baltzer Mercantile Company, a corporation, was adjudged a bankrupt, and the appellee was appointed trustee therefor. Thereafter he exhibited an original bill in the court below against the appellants, setting forth an alleged indebtedness by the appellants to the bankrupt, and praying for a judgment therefor. The bill alleges that the debt was originally due by the appellants to a partnership of which they were members, and was transferred by the partnership to the Baltzer Mercantile Company, a corporation organized for the purpose of taking over the assets and assuming the liabilities of the partnership.

The bill further alleges that the assignment to the Baltzer Mercantile Company of the partnership accounts and bills and notes receivable was not in writing, and that the corporation "held the same by equitable title" to which the appellee, the trustee in bankruptcy for the corporation, has succeeded. The case was tried on bill, answer, and proof, resulting in a decree for the appellee.

The record presents several questions for decision, but it will not be necessary for us to decide but one of them, the title vel non of the appellee to the debt sued on, for the reason that the conclusion we have reached relative thereto necessitates the reversal of the decree of the court and the rendition of a judgment here for appellants.

The evidence bearing on this question is, in substance, as follows: During and prior to the year 1929, the appellants owned a plantation which they were operating under the name of Baltzer Planting Company. They were also engaged in the mercantile business under the name of the Baltzer Mercantile Company, which mercantile business was managed by Strickland who was to receive a percentage of the profits thereof. He had no interest in the planting business. In December, 1929, the appellants and Strickland decided to incorporate their mercantile business, and to that end a statement of its assets and liabilities was prepared. Among the accounts appearing...