Welch v. Gant

• Decision Date: 04 January 1932
• Docket Number: 29688
• Court: Mississippi Supreme Court
• Parties: WELCH v. GANT

138 So. 585

161 Miss. 867

WELCH v. GANT

No. 29688

Supreme Court of Mississippi

January 4, 1932

Division B

1. EVIDENCE. Language at bottom of note, "On Buick auto," was not ambiguous so as to permit parol evidence to show what language meant.

Word "on" is defined as indicating a basis or ground of action, in reference or relation to, with respect to, for on account, and the ordinary mind would construe the language quoted as a statement of the consideration for the note, as it was in fact.

2 EVIDENCE.

Parol evidence is not admissible to add to contract a provision which it did not contain, where there is no ambiguity.

HON. D M. ANDERSON, Judge.

APPEAL from circuit court of Leake county HON. D. M. ANDERSON Judge.

Action by L. E. Welch against M. B. Gant. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Ross R. Barnett and E. L. Shelton, both of Jackson, for appellant.

It is a general rule of law, that marginal notations or memoranda placed on a bill or note at the time of the execution thereof with the intention of making them a part of the contract, constitute a part of the written contract and must be construed with the body of the instrument to arrive at the true agreement existing between the parties.

8 C. J., p. 323; Bay v. Schrader, 50 Miss. 326; Key v. Cross, 23 Miss. 598; Effinger v. Richards, 35 Miss. 54; Sholby v. Schuchardt, 13 A. L. R. 247, 251.

It is the general rule that where a contract is uncertain, ambiguous or incomplete the whole agreement may be proven.

10 R. C. L., p. 1030; Scholbe v. Schuharde, 292 Ill. 529, 13 A. L. R. 247; Sacred Heart Church Building Committee v. Mason, 233 Ala. 256, 92 So. 498; Niles v. Sire, 94 N.Y.S. 586; Kupperman v. Hartwell, 4 Am. Dec. 225; Jones v. Hales, 4 Mass. 245; Emmett v. Penoyer, 151 N.Y. 564, 45 N.E. 1041; Underwood v. Greenwich Ins. Co., 191 N.Y. 424, 35 N.E. 939, 127 Am. St. Rep. 432.

The rule excluding parol evidence to vary or contradict a written instrument applies only to controversies between parties to the instrument and those claiming under them. It has no application between a party to the instrument on the one hand and a stranger to it on the other for the stranger not having assented to the contract is not bound by it and is therefore at liberty when his rights are concerned to show that the written instrument does not express the full or true character of the transaction and when the stranger to the instrument is thus free to vary or contradict it by parol, his adversary, although a party to the instrument, may be equally free to do so.

22 C. J., p. 292.

The holder of a retention title can follow his car through the hands of any number of innocent purchasers, whether they are engaged in the public business of selling cars or not, and reclaim possession of it when found.

Harrison v. Broadway Motor Company, 91 So. 453; Young v. Salley, 35 So. 571, 83 Miss. 362.

Where the words "In facilities" were written on the left side of a plain promissory note of the usual form, parol testimony to explain the meaning of these words was admitted.

Springfield Bank v. Merrick, 14 Mass. 322.

F. E. Leach, of Carthage, for appellee.

It is a well established rule of the common law, which has been embodied in statutes in a number of states, that when the judgment of any court, or any other judicial or official proceeding, or any grant or other disposition of property, or any contract, agreement or undertaking has been reduced to writing and is evidenced by a document or series of documents, the contents of such documents cannot be contradicted, altered, added to, or varied by parol or extrinsic evidence.

22 C. J., p. 1070; Bullard v. Brown, 46 So. 137; Shapleigh Hdw. Co. v. Spiro, 106 So. 209.

In its commonly accepted terms the notation referred to means simply that the note was given as a consideration of the balance due on the Buick auto, and even to attempt to write into the note by an oral agreement that it was intended by that expression, so simple and plain, and so common in business transactions of that kind, to retain the title in the seller until the note was paid, would be the equivalent of striking down the rule so long and wisely established as to the law of written contracts.

A latent ambiguity may be explained by extrinsic evidence but a patent ambiguity may not.

22 C. J., pp. 1191-1197.

OPINION

Anderson, J.

The appellant, L. E. Welch, brought this action of replevin in the circuit court of Leake county against appellee, M. B. Gant, to recover possession of an automobile described as "Buick automobile '28 model, brougham master six." At the close of the evidence the court directed a verdict for the appellee, and judgment was entered accordingly, from which judgment appellant prosecutes this appeal.

Appellant sold to Dr. K. Ozborn the Buick...