Wagner v. Ellis

• Decision Date: 27 February 1905
• Citation: 85 Miss. 422,37 So. 959
• Court: Mississippi Supreme Court
• Parties: JACOB S. WAGNER v. BENTON S. ELLIS

37 So. 959

85 Miss. 422

JACOB S. WAGNER v. BENTON S. ELLIS

Supreme Court of Mississippi

February 27, 1905

November 1904

FROM the circuit court of Jefferson county HON. MOYSE H WILKERSON, Judge.

Ellis the appellee, was plaintiff, and Wagner, the appellant defendant in the court below. From a judgment in plaintiff's favor for $ 300 and costs, the defendant appealed to the supreme court. The suit was to recover damages suffered by plaintiff because the defendant enticed away plaintiff's tenant, one Calvin Paxton, whereby plaintiff lost the rent of his agricultural land, and the land was damaged by growing up in weeds, etc. It seems that the proceeding was predicated of Laws 1900, ch. 102, p. 140.

Judgment affirmed.

Hicks & Shelton, for appellant.

We submit, in the first place, that the contract for the lease of the land to Paxton by Ellis, being, as stated by him, for a period of three years, must have been in writing to be a legal, valid, and subsisting contract, and if such a contract was ever made in writing, as the law requires, it has never been introduced in evidence in this case, and is not now before the court. It is true that Ellis testified that a contract in writing was made with Paxton, and a contract was handed him which he identified as the contract, but it was never offered in evidence, and the court does not now know from any legal evidence what the contents of this contract were, nor that it was such a contract as the law requires. The burden of proof was upon the plaintiff, and it is shown by the testimony of Ellis that such a contract was in existence, but it was never offered in evidence, and oral evidence cannot be substituted for any instrument which the law requires to be in writing. I Greenleaf on Ev., sec. 86.

Again, we submit that the court erred in permitting Ellis to testify, over the objection of Wagner's counsel, to a part of the contents of a written contract claimed to have been made between Wagner and Paxton, the tenant. The award of three hundred dollars damages is excessive and unwarranted by the proof.

Corban & Easterling, and J. B. Webb, for appellee.

Appellant allowed parol evidence of the contents of the writing to go to the jury without objection. If he had objected, and it had been necessary for the contract to have been introduced instead of its contents stated, we would have filed the instrument if the court had so required. Appellant cannot now complain. Storm v. Green, 51 Miss. 103.

The court did not err in allowing Ellis to testify as to the contract between Paxton and Wagner, which Ellis said was in the possession of Wagner. Wagner had the contract, and he could have produced it.

OPINION

WHITFIELD, C. J.

It is insisted that the court erred in allowing the plaintiff to prove by parol the contents of the written contract between Ellis and the tenant, Paxton,...