Taylor v. C. I. T. Corporation

• Decision Date: 25 September 1939
• Docket Number: 33776
• Citation: 187 Miss. 581,191 So. 60
• Court: Mississippi Supreme Court
• Parties: TAYLOR v. C. I. T. CORPORATION

191 So. 60

187 Miss. 581

TAYLOR v. C. I. T. CORPORATION

No. 33776

Supreme Court of Mississippi, Division A

September 25, 1939

Suggestion Of Error Overruled October 23, 1939.

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

Replevin by E. B. Taylor against the C. I. T. Corporation, for the possession of an automobile. From a judgment of the circuit court for defendant, reversing a judgment of the county court for plaintiff, plaintiff appeals. Affirmed.

Affirmed.

A. S Scott, of Laurel, for appellant.

A receipt, merely a receipt like this repossession receipt clearly not contractual in its nature, is always subject to be explained. But of course always so, even if contractual in its nature, if obtained through fraud; it doesn't vary it; it destroys it. Does it require citation of authority that a receipt may be explained by parol testimony? Certainly not. But if it is said that this is a receipt contractual in its nature--which it isn't--yet under our plea of "not guilty" in this replevin suit we could always introduce testimony to show fraud, which annihilates all contracts--Nash Motor Company v. Childers, 125 So. 708.

5 C. J., page 958, Sec. 144, says: "Assignment for collection: When a chose, capable of legal assignment, is assigned absolutely to one, but the assignment is made for the purpose of collection, the legal title thereto vests in the assignee, and it is no concern of the debtor that the equitable title is in another, and payment to the assignee discharges the debtor."

5 C. J., page 958, says: "A power of attorney to collect a claim, although declared to be irrevocable, is not an assignment and does not preclude a subsequent release by the alleged assignor."

Napier v. McLeod, 9 Wend. (N.Y.) 120.

Also, 5 C. J., page 598, says: "An assignment merely for collection does not transfer the beneficial ownership to the assignee."

Porter v. Davis, 2 How. Pr. (N.Y.) 30.

Yet in case at bar, there is no sort of assignment, even one for collection, as far as exhibit "B" discloses; none at all, and the said exhibit is certainly controlling.

5 C. J. 958, note 86; Bigelow on Bills, Notes and Cheques (2 Ed.), 250; Austin v. Curtis, 31 Vt. 64; Oates v. First National Bank, 100 U.S. 239; Bigelow's L. C. Bills & Notes, 495, 500, 503; Payne v. Flournoy, 29 Ark. 500.

In case of holder in due course, payment to original holder after transfer is insufficient, but not so to mere agent for collection.

8 C. J. 598, Sec. 835; Heckler v. Boylan, 126 Iowa 162, 101 N.W. 755; Page Woven Wire Fence Co. v. Pool, 133 Mich. 323, 94 N.W. 1053.

Recitals in exhibit controls allegations in bill in conflict, where exhibit is made basis of suit.

105 So. 502; Columbian Mut. Life Assur. Soc. v. Harrington, 104 So. 297, 139 Miss. 826; Woodall v. Malone-Harrison Motor Co., 122 So. 357.

These authorities are cited in final conclusion to support our contention that when the C. I. T. Corporation filed its declaration alleging that Taylor had assigned and delivered for collection the Rutland contract; and, as shown by Exhibit "B" attached thereto, that when the demurrer was duly interposed, pointing out the fatal variance in the allegation of the declaration and the controlling Exhibit "B"--and that exhibit showed on its face that there was no assignment of anything by anyone to anyone--we say the demurrer should have been promptly sustained, and that parol testimony should not have been introduced to attempt to add to or take away from the basis of lawsuit Exhibit "B". We still submit that we had a perfect right to hold the plaintiff to the allegations made in its declaration, and the controlling exhibit attached thereto, and that when the said exhibit did show on its face that there was no sort of an assignment, no passing of right, title or interest whatsoever, then this variance cannot be reconciled under any theory known to our system of pleadings. The cases we have cited touching this point are certainly conclusive, and it is only regretable that we should be forced to go to the court of last resort to protect our rights in the premises. But even so, since the county court allowed testimony to be introduced to attempt to prove the there was an assignment or pledge, made by Taylor to C. I. T. Corporation, in open violation of the rule preventing a written contract from being varied or contradicted by parol testimony, yet the jury after hearing all the evidence, under the instructions of the court, promptly returned a verdict in favor of the appellant, E. B. Taylor; and that it, of course, conclusive. We most respectfully submit, therefore, that this cause should be reversed and rendered.

Deavours & Hilbun and Beard & Pack, all of Laurel, for appellee.

We believe that we shall be able to spare the time and patience of the court by directing attention, at the very outset of our argument, to the nature of the so-called repossession receipt and its effect upon this cause. For this instrument, of its own force and irrespective of other questions, conclusively establishes the right of appellee to an affirmance of the circuit court's judgment.

This document is neither in fact nor in law a mere receipt, being contractual in its nature and therefore not susceptible to variation by parol testimony. A writing, though in the form of a receipt, may be, and very often is, conclusive.

Wigmore on Evidence (2 Ed.), Sec. 2432; Baum v. Lynn, 72 Miss. 932, 18 So. 428; Johnson v. Johnson, 74 Miss. 549, 21 So. 147; English v. N. O. & N. E., 100 Miss. 575, 56 So. 665; A. & V. R. Co. v. Kropp, 129 Miss. 616, 92 So. 691; Orgill Bros. v. Polk, 155 Miss. 402, 124 So. 649; 6 C. J. 1106.

This written contract of bailment cannot be varied by parol evidence of appellant that he did or might have intended something else, which is not embraced within the four corners of the instrument. That parol evidence is not admissible to vary, alter or contradict the terms of a written contract, whether it be a contract of bailment or of something else, is a principle so rudimentary that it requires no citation of authority. But in addition to, and aside from that principle, it is equally well established that a bailee is estopped to deny the title of his bailor and attempt to set up in himself the ownership of the property bailed.

3 R. C. L. 87; 22 C. J. 1107.

Appellant contends the repossession receipt was obtained through fraudulent representations, and the court ought therefore to take into consideration his testimony that he did not intend to make of himself a bailee and did not intend to disclaim ownership of the automobile. One may not, merely by crying fraud, open the doors for admission of parol evidence to change or contradict the terms of a written instrument. That is the right only of one who does not merely assert fraud but also actually proves it--and proves it clearly and convincingly.

Griffith's Chan. Practice, Sec. 589.

A writing must be construed by the court and not by the jury.

Randolph v. Govan, 14 S. & M. 9; Benson v. Benson, 24 Miss. 625; Beasley v. Evans, 35 Miss. 192; Fairly v. Fairly, 38 Miss. 280.

We bear in mind that it is not ordinarily necessary that a plaintiff in replevin prove title in himself replevin being a possessory action and it is not necessary in this case. But appellant's sole defense being ownership in himself it follows that if ownership or title be found in appellee then appellant's defense has failed. On the other hand, appellee may have the right to possession without having title to the automobile.

Trenholm v. Miles, 102 Miss. 835, 59 So. 930; Ross-Meehan v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364; Peets & Norman Co. v. Baker, 95 Miss. 580, 48 So. 898; 5 C. J. 598 and note 86; Newman v. Bank of Greenville, 66 Miss. 323, 5 So. 753.

Appellant contends that Exhibit B was not an assignment, or sale, or assignment for collection, or pledge, but that it merely created an agency for collection. As to this last possible construction of Exhibit B, it is not only foreign to the record but it is somewhat of a strain on our ability at hypothesis to assume that the C. I. T. Corporation is a collection agency and not a finance company.

Miss. Cottonseed Products Co. v. Canal Bank & Trust Co., 172 Miss. 105, 159 So. 404.

Argued orally by A. S. Scott, for appellant, and by Sam V. Pack, for appellee.

OPINION

Anderson, J.

The appellee brought replevin in the county court of Jones County against appellant for the possession of an automobile. A trial in the county court resulted in a judgment for appellant. From that...