Thompson v. Williams

• Decision Date: 01 January 1883
• Parties: N. C. THOMPSON v. J. F. WILLIAMS
• Court: Kansas Supreme Court

1 P. 47

30 Kan. 114

N. C. THOMPSON v. J. F. WILLIAMS

Supreme Court of Kansas

January 1, 1883

Error from Smith District Court.

THE nature of the action, and the facts, appear in the opinion. At the May Term, 1882, of the district court, defendant Williams recovered a judgment against plaintiff Thompson, who brings the case here.

Judgment reversed and case remanded.

J. B Johnson, E. Hagan, and Pattee & Royce, for plaintiff in error.

Uhl & Pickler, for defendant in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

This was an action of replevin, brought by plaintiff in error plaintiff below, in the district court of Smith county. The case was tried before a jury; verdict and judgment were in favor of the defendant, and plaintiff alleges error. The defendant objects to the consideration of the record, on the ground that the original case-made and not a copy is filed in this court, citing General Statutes, chapter 80, § 548. The law referred to has been amended, and now it is the original rather than a copy which must be filed in this court. (Laws 1877, p. 243, § 1; Transportation Co. v. Palmer, 19 Kan. 471.)

Passing now to the substantial questions involved, it appears that the defendant executed the following instrument in reference to the property replevied:

"Received of Corn and Royce one Chicago Pitts threshing machine separator, all complete except the whiffletrees and short main belt; also, one four-wheel mounted horse-power, also manufactured by Chicago Pitts Co.--all the property of Norman C. Thompson, which for a valuable consideration I agree to deliver to said Norman C. Thompson, or his attorneys Corn and Royce, or their agents, in good condition, at any time they may demand the same.

(Signed) J. F. WILLIAMS."

Defendant contends that this paper is a mere receipt, which is only prima facie evidence, and open to explanation; while plaintiff contends that it is a written contract which is conclusive upon the parties. Obviously it is something more than a receipt, and so far as it is more than a receipt it is as conclusive as any other written contract. In 1 Greenleaf on Evidence, § 305, the rule is thus stated:

"In regard to receipts, it is to be noted that they may be either mere acknowledgments of payment or delivery, or they may also contain a contract to do something in relation to the thing delivered. In the former case, and so far as the receipt goes only to acknowledge payment or delivery, it is merely prima facie evidence of the fact, and not conclusive; and therefore the fact which it recites may be contradicted by oral testimony. But in so far as it is evidence of a contract between the parties, it stands on the footing of all other contracts in writing, and cannot be contradicted or varied by parol. Thus, for example, a bill of lading, which partakes of both of these characters, may be contradicted and explained in its recital that the goods were in good order and well-conditioned, by showing that their internal order and condition was bad, and in like manner, in any other fact which it erroneously recites; but in other respects it is to be treated like other written contracts."

See also the authorities cited in the note, especially the case of Langdon v. Langdon, 4 Gray 186, which is very strongly in point. In that case it appears that the payee of a nonnegotiable note for $ 120 delivered it to a third person, and took back the following writing: "Received of A, a note, [describing it,] for which I am to collect and account to the said A the sum of $ 110, when the above note is collected, or return said note back to said A, if I choose;" and it was decided that parol evidence offered to show that the note was held on other and different terms, was rightly excluded. See also Bemis v. Becker, 1 Kan. 226.

This writing, therefore, conclusive as against parol evidence proved a contract of bailment between the parties. Under such a contract the general doctrine is, that the bailee cannot set up title in a third party, and a fortiori in himself, to preserve his own possession and to prevent a return of the property to the bailor. He is estopped to deny his bailor's title, even as a tenant his landlord's. (See The Idaho, 93 U.S. 575.) Indeed, as appears from the...