Young v. Salley

• Decision Date: 11 January 1904
• Citation: 83 Miss. 362,35 So. 571
• Court: Mississippi Supreme Court
• Parties: DANIEL B. YOUNG v. MARLON A. SALLEY

35 So. 571

83 Miss. 362

DANIEL B. YOUNG v. MARLON A. SALLEY

Supreme Court of Mississippi

January 11, 1904

FROM the circuit court of Webster county. HON. WILLIAM F. STEVENS Judge.

The appellant, Young, was plaintiff, and the appellee, Salley was defendant in the court below.

The opinion states the case.

Reversed and remanded.

Samuel Cook and Hill, Sisson & Knox, for the appellant.

The excluded testimony of the plaintiff, Young, was clearly admissible. It was not offered to contradict or vary a written instrument, but to ascertain the qualities, nature and description of the subject of a contract. Dixon v. Cook, 47 Miss. 220.

Extrinsic evidence is admissible for the identification of the thing as well as the person intended by the maker of an instrument. Peacher v. Strauss, 47 Miss. 353, 7 Am. & Eng. Enc. Law, 93; Shackelford v. Hooker, 54 Miss. 716. The rule as to mortgages and deeds of trust cannot be invoked in aid of the appellee.

A. F. Fox and Dunn & Gould, for the appellee.

The contract evidence by Harper's note was one which created and vested the right relied on, and parol evidence was, therefore, inadmissible to add anything thereto. Baum v. Lynn, 72 Miss. 932. There is a patent ambiguity in the description of the animal referred to in the note which cannot be aided by extrinsic evidence. Bowers v. Andrews, 52 Miss. 596; Haughton v. Sarter, 71 Ib., 357. The description employed in the note would be void in a mortgage, and the reservation of title is only by way of security.

OPINION

CALHOON, J.

Young brought replevin on March 12, 1903, against Salley for "one sorrel blaze face mare," and, as evidence in his behalf, offered the following paper:

"Sixty days after date I promise to pay D. B. Young $ 65.00 for one mare. The title of said mare is to remain in D. B. Young until paid for. This 8 July, 1902.

"T. J. X HARPER."

To the introduction of this Salley objected on the sole ground of the insufficiency of the discription of the mare, and the court sustained the objection, and Young excepted. Young then offered to prove that the mare seized in the possession of Salley under the writ of replevin was the identical mare which was the subject of the conditional sale to Harper evidenced by the paper, but the court sustained objection to this on the ground that, "the instrument itself being void because there was no description of the property in controversy, the description cannot be supplied by parol testimony." Young excepted to this ruling, and then offered to prove that Salley knew the "condition of the title to this property when he traded for the mare," and objection was sustained to this, and exception taken, and there was a peremptory instruction for Salley.

The doctrine of ambiguities and voidness for uncertainty of description has no pertinency to this case. Young had the right to his own mare, whether found in the hands of Harper his conditional vendee, or any purchaser from Harper, with or without notice of the reservation of title, unless--as is not the case here--possession for three years had made the statute of frauds applicable. Code 1892, § 4227. Ketchum v. Brennan, 53 Miss. 596; 21 Am. & Eng. Enc. of Law (lst ed.), 653, 658; Brame & Alexander's Digest, 1048, cl. 18; Duke v. Shackleford, 56 Miss. 552; Gayden v. Tufts, 68 Miss. 691, 10 So. 53. The decision must...