Truckers Exchange Bank v. Conroy

Decision Date23 December 1940
Docket Number34346
CourtMississippi Supreme Court
PartiesTRUCKERS EXCHANGE BANK et al. v. CONROY

Suggestion Of Error Overruled January 20, 1941.

APPEAL from the circuit court of Copiah county, HON. J. F. GUYNES Judge.

Libel action by Mrs. Ora G. Conroy against the Truckers Exchange Bank and another. Judgment for plaintiff, and defendants appeal. Reversed and rendered.

Reversed, and judgment here for appellants.

Henley Jones & Woodliff, of Hazlehurst, for appellants.

The evidence was wholly insufficient to sustain a verdict for the plaintiff.

Where fraud is charged, it must be proved by clear and convincing evidence.

Martin v. Gill, 181 So. 849, 182 Miss. 810; Dowling v. White Lbr. & Supply Co., 154 So. 703, 170 Miss. 267; N.Y.Life Ins. Co. v. Gill, 182 So. 109, 182. Miss. 815; McCain v. Cockran, 153 Miss. 237, 120 So. 823; Simonton v. Los Angeles Trust & Savings Bank, 270 Pa. 672, 27 C. J. 44; Drawn v. New Amsterdam Casualty Co., 175 Cal. 21, 165 P. 5; Garey v. Morley Bros., 209 N.W. 116; Brooks v. Culver, 168 Mich. 436, 134 N.W. 470; Schiessler v. Pierce, 225 Mich. 91, 195 N.W. 804; Bruckler v. Welch, 226. Mich. 535, 198 N.W. 234; In re Hatten's Estate, 288 N.W. 279; Max L. Bloom Co. v. U.S. Casualty Co., 191 Wis. 524, 210 N.W. 689; Kuska v. Apel, 203 Wis. 389, 232 N.W. 593; Lange v. Heckel, 171 Wis. 59, 175 N.W. 788; Parker v. Hull, 71 Wis. 368, 37 N.W. 351, 5 Am. St. Rep. 224; Miloncsky v. Farmers Mutual Fire Ins. Co., 200 Wis. 255, 227 N.W. 873; Smothers v. Cosgrove-Meehan Coal Co., 264 Ill.App. 488; McInturff v. Ins. Co. of North America, 248 Ill. 92, 99; Brown v. Robinson, 120 N.E. 694; Morton v. Thurber, 85 N.Y. 550; Guggenheimer v. Geissler, 81 N.Y. 293.

The cross-examination of the plaintiff demonstrated that she could not be certain as to the contents of the written instruments.

Thomas v. Ribble (Va.), 24 S.E. 241; Prichard & Thompson Advertising Agency, Inc., v. Pereira (La.), 147 So. 507.

Mrs. Conroy's testimony was in conflict with the admitted physical facts.

Elwood v. Schlank, 252 N.W. 828, 126 Neb. 213; Dodds v. Omaha & C. B. Street R. Co., 104 Neb. 692, 178 N.W. 258; Oliver v. Union P. R. Co., 105 Neb. 243, 179 N.W. 1017; Calnon v. Fidelity-Phenix Fire Ins. Co., 114 Neb. 53, 205 N.W. 942, 207 N.W. 528; Bentley v. Heagland, 94 Neb. 442, 143 N.W. 465.

The circumstances were such as to demonstrate that the plaintiff's testimony is unreasonable and unbelievable.

Teche Lines, Inc., v. Bounds, 182 Miss. 638, 179 So. 747; Moen v. Moen, 256 N.W. 254, 65 N.D. 40.

The scintilla of evidence rule does not apply in Mississippi.

Y. & M. V. R. R. v. Lamensdorf, 178 So. 80, 180 Miss. 426; Thomas v. Williamson, 187 So. 220, 185 Miss. 83; Mutual, etc., Assn. v. Johnson, 180 So. 297; Wooten v. Mobile R. R. Co., 89 Miss. 322, 42 So. 131; Clark v. Moyse (Miss.), 48 So. 721; McFadden v. Buckley, 98 Miss. 28, 53 So. 351; Fore v. A. & V. Ry. Co., 87 Miss. 211, 39 So. 493, 690; Ala. Great Southern R. Co. v. Daniell, 108 Miss. 358, 66 So. 730; Newton v. Homochitto Lbr. Co., 162 Miss. 20, 138 So. 564; M. & O. R. Co. v. Johnson, 165 Miss. 397, 141 So. 581; Justice v. State, 170 Miss. 96, 154 So. 265; Fore v. I. C. R. Co., 172 Miss. 451, 159 So. 557, 160 So. 903; Fatherree v. Griffin, 153 Miss. 570, 121 So. 119; C. & G. R. Co. v. Coleman, 172 Miss. 514, 160 So. 277, 279; Berryhill et al. v. Nichols, 171 Miss. 769, 158 So. 470; Southern Ry. Co. v. Buse, 193 So. 918.

M. S. McNeil, of Hazlehurst, and R. L. Jones, of Brookhaven, for appellee.

Counsel for appellant cite several authorities upon the proposition that in charges of fraud the proof must be clear and convincing. We assert that in this case the real issue being whether the interlineation and alteration were made prior or subsequent to the execution of the papers that the testimony of Mrs. Conroy, as stated by the circuit judge, is clear, positive, and convincing upon that issue.

Counsel also seeks to have this court overthrow the judgment of the jury because the plaintiff was apparently confused on the witness stand about whether or not the jewelry was described in the note or the deed of trust. This, however, could not be controlling when the real issue was whether she gave a lien on the furniture and fixtures, and she was positive, clear and convincing in her evidence that the papers she signed did not convey a lien on such fixtures.

An erasure or interlineation appearing upon the face of an instrument is not an alteration in a legal sense, unless made after the delivery of the instrument, and whether a change or alteration in an instrument was made before or after its execution and delivery is a question of fact to be determined by the jury, or the chancellor, as the case may be. Except in the case of negotiable papers, which is recognized in this state as an exception to the rule, the general presumption is in favor of honesty and fair dealing in all transactions and against the imputation of fraud, and one who assails a deed on account of erasures or interlineations therein has the burden of showing that the erasures or interlineations were made after the execution of the deed.

Scott v. Perry, 140 Miss. 459; Holmes v. Ford, 179 Miss. 673; 3 C. J. S. 992; Merchants & Farmers' Bank v. Dent, 102 Miss. 455; Fanning v. C. I. T. Corp., 192 So. 41.

The physical facts do not dispute the testimony of Mrs. Conroy. The deed of trust itself shows the alteration and corroborates her testimony.

Argued orally by W. S. Henley, for appellant, and by R. L. Jones, for appellee.

Smith, C. J., McGehee, J., specially concurring. Ethridge, J., dissenting.

OPINION

Smith, C. J.

The appellee recovered a judgment against the appellants in an action for libel. The case was before this Court once before under the style of Conroy v. Breland et al., 185 Miss. 787, 189 So. 814.

The action is based on a letter alleged to have been written by the appellants, charging the appellee with having given them a deed of trust on property in her possession, but which she did not own and was without the right to encumber. The court below refused the appellants' request for a directed verdict, and, as we have arrived at the conclusion that it erred in so doing, the case will be stated in so far only as it bears on that question.

On October 28, 1937, the appellee and her husband, who were engaged in the mercantile business in Crystal Springs, were indebted to the appellant Truckers Exchange Bank in the sum of $ 1, 450; evidenced by two notes, one for $ 750 and the other for $ 700. The first of these notes was secured by a deed of trust on real property, and the other by a pledge of jewelry. On that day, or shortly prior thereto, Breland, the president of and acting for appellant bank, agreed to permit the Conroys to renew these notes and to lend them $ 250 additional. Pursuant to this agreement, a new note from the Conroys to the bank, for $ 1, 700, was executed by the Conroys to the bank, secured by a deed of trust on real property and the jewelry hereinbefore mentioned. The description of the property in the deed of trust, when recorded shortly after its execution in the office of the chancery clerk, and when offered in evidence in the court below, covered the home of the Conroys and another piece of real estate which they had formerly owned but had sold several years theretofore, and "all furniture and fixtures in store we now occupy on R. R. Ave." The jewelry, heretofore mentioned, was listed on the back of the note in a memorandum signed by Mr. and Mrs. Conroy, in addition to their signatures on the face of the note. The Conroys did not own a large part of the furniture and fixtures then in their "store" and being used by them.

Some time after the execution of this deed of trust, Mr. Conroy died, and Mrs. Conroy went into bankruptcy, whereupon Batton, the owner of a portion of the fixtures in the Conroy store, obtained, and was holding, possession thereof. On learning this, the trustee in the deed of trust given by the Convoys to the appellant bank, who was also its regularly retained attorney, wrote a letter to Batton informing him that the fixtures in his possession were covered by the bank's deed of trust. We will assume that the evidence discloses that this letter was written for the bank at Breland's request. Afterwards this action was brought by the appellee as set forth in Conroy v. Breland et al., supra.

One of the fundamental elements of the appellee's cause of action is the charge in her declaration that the deed of trust did not cover the furniture and fixtures when she and her husband signed and delivered it, but that thereafter it was fraudulently altered by the appellants by the insertion of the furniture and fixtures in the description of the property covered by the deed of trust. The only persons who could know whether this allegation was true or not were Mrs. Conroy, Breland, Carmichael, the cashier of the bank, and Mrs. Wallace, Breland's secretary, all of whom testified. Mrs. Conroy said that she went to the bank on the day the deed of trust was executed and read it. Later in the day it was brought to her home, where her husband was sick in bed, by Mrs. Wallace, the secretary of Mr. Breland, who was also a notary public. She then read it to her husband, after which the deed of trust and the note were signed by them, the deed of trust being acknowledged before Mrs. Wallace.

Mrs Conroy, after testifying that she read every line of the deed of trust, said that she had read only the typewritten and not the printed portions thereof. She said that when she and her husband signed the deed of trust the only real property described therein was their home, that no furniture or fixtures were described therein, and that...

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