Stone v. Grenada Grocery Co.

• Decision Date: 17 January 1938
• Docket Number: 32988
• Citation: 180 Miss. 566,178 So. 107
• Court: Mississippi Supreme Court
• Parties: STONE et al. v. GRENADA GROCERY Co. et al

178 So. 107

180 Miss. 566

STONE et al. v. GRENADA GROCERY Co. et al

No. 32988

Supreme Court of Mississippi

January 17, 1938

Division A

Suggestion Of Error Overruled January 31, 1938.

APPEAL from the circuit court of Grenada county HON. JOHN F. ALLEN Judge.

Action by W. I. Stone, trustee, and others against the Grenada Grocery Company and others for the conversion of several bales of cotton. From a judgment entered on a directed verdict for defendants, plaintiffs appeal. Reversed and remanded.

Reversed and remanded.

John P Stone, of Coffeeville, for appellants.

The rule excluding parol evidence to vary or contradict a written instrument applies only in controversies between the parties to the instrument and those claiming under them.

22 C. J., page 1291, sec. 1725, and page 1294, sec. 1726; McGruder v. Palmer, 109 Miss. 516, 69 So. 498; Whitney v. Cowan, 55 Miss. 626.

To be a privy to another, a man must claim by or under that other by blood, as heir, by representation, as executor, or by contract, as vendee, assignee, and the like.

Crutchfield v. Hudson, 23 Ala. 393; Rowe v. Johnson, 214 Ala. 510, 108 So. 604.

He who is in privity stands in the shoes or sits in the seat of the owner from whom he derives his title and thus takes it charged with the burden attending it.

Boughton v. Harder, 46 A.D. 352, 61 N.Y.S. 574; Weston Lbr. Co. v. Lacey Lbr. Co., 123 Miss. 208, 85 So. 193, 10 A. L. R. 436; Lipscomb v. Postell, 38 Miss. 476, 77 Am. Dec. 671.

All admit that our rule of law and everybody's rule of law would prohibit Gid Crenshaw from varying or contradicting his solemn act in signing and acknowledging and recording a deed of trust to the Coffeeville Bank. How vain and foolish and absurd would this rule of law be if by the simple expedient of transferring the property covered by his deed of trust to Vernon Craig and the Grenada Grocery Company they could come in then as his privies and use him to destroy the deed of trust. No man would ever fail to have a friend to whom he could conveniently transfer the property and then swear his solemn acts off the hinges. It is bad enough to have this come-lately repudiation if we had a contest between parties who were not parties or privies to the deed of trust, but it never would do in this world to extend it to the successors in title of the repudiating witness.

Cowles Horton, of Grenada, for appellees.

Where parties embody their mutual agreements in a formal written instrument they make that instrument the evidence and exponent of the things agreed. Such writing, therefore, necessarily becomes, as to its makers, the sole evidence of their contract.

Cocke v. Blackburn, 58 Miss. 539.

The writing, strictly speaking, is not the agreement at all. The agreement is created and comes into existence by the meeting of the minds of the parties upon the terms thereof. By the act of the parties in reducing the agreement to writing, such writing is nothing more or less than the evidence of the agreement which the parties may not dispute. This, as we understand, is the rationale of the rule above referred to.

The rule prohibiting parties from contradicting their own written contract by parole is never applied against third parties claiming adversely to the writing. Such parties never having assented thereto may not be, in law, bound hereby.

Whitney v. Cowan, 55 Miss. 625; Magruder v. Palmer, 109 Miss. 516; Rice v. Troup, 62 Miss. 186; Baum v. Lynn, 72 Miss. 932; Whitbeck v. Whitbeck, 18 Am. Dec. 503; 22 C. J. 1292, sec. 1725; 30 R. C. L. 1020, sec. 213; 1 Greenl. Er. (Redfield Ed.), sec. 179.

Appellees were never parties to Crenshaw's trust deed, had no connection therewith and make no claim thereunder. On the other hand, their claims are at war with, independent of and antagonistic to that instrument. They are, therefore, not bound thereby and have the right to show that it does not recite the actual agreement of the parties, Crenshaw and the Bank.

Appellees are not privies to the instrument. They occupy in this suit; the position of adverse claimants both as to this trust deed and the bank. As such, their rights must be determined by the facts as they are,--not by what the writing erroneously shows to be the facts.

If counsel's position is correct, no purchaser of property would ever be safe for when he succeeded to the title of the vendor he would become a privy to every contract which the seller had ever made in connection with the property. This, we submit, is not the law.

The bank's debt was past due. Crenshaw could not operate to make his 1931 crop without this furnish to make same. The Bank, by its actual agreement, conceded this to be true and permitted Crenshaw to have his crops free to be pledged to these other parties therefor. The Bank, therefore, is in no position to assert its purely technical claim under a rule of evidence never intended to be applied to strangers to the contract.

Butler v. Cruise, 175 Miss. 201; Coffey v. Land, 176 Miss. 114.

Parties who are bound by written instruments are the parties to the instrument. Privies to that instrument are those who either do...