Opinion
No. 28080.
October 28, 1929.
1. JUSTICES OF THE PEACE. In action before justice of peace, where defendant did not, by sworn plea, deny execution of written instrument, evidence he did not execute instrument held improperly admitted ( Hemingway's Code 1927, sections 1706, 2384).
In action on written contract brought before justice of the peace, in which contract was referred to in plaintiff's written statement of cause of action and made part of statement as contemplated by Code 1906, section 2730 (Hemingway's Code 1927, section 2384), but defendant did not, by sworn plea, deny execution of written instrument, as required by Code 1906, section 1974 (Hemingway's Code 1927, section 1706), evidence that defendant never signed or executed written contract sued on held improperly admitted.
2. SALES. Where carrier returned refused shipment to seller, there was no presumption that seller accepted return of shipment.
Where buyer refused C.O.D. shipment, and express company returned goods to seller in accordance with rules, there was no presumption that seller accepted goods upon return of shipment so as to work rescission of sales contract and relieve buyer of liability thereon.
APPEAL from circuit court of Clarke county. HON. J.D. FATHEREE, Judge.
H.F. Case, of Quitman, for appellant.
Since appellee had filed no plea of non est factum or any plea under oath denying the execution of the contract sued on, which was exhibited with the affidavit and filed as the basis of the action, his testimony denying signing it, admitted over appellant's timely objection, was inadmissible and in direct violation of section 1974, Code of 1906 (Sec. 1706, Hemingway's 1927 Code).
The record discloses that appellee relied alone on his denial of the execution of the contract as a defense to this suit, this defense was not admissible under his plea. L.J. Broadway and W.F. Latham, both of Quitman, for appellee.
Where written instrument is only evidence and not the foundation of the suit, it is not incumbent on the defendant to deny its execution by a written plea under oath in order to be able to testify that he did not execute it. The plaintiff has treated this suit as one on an account by filing affidavit to the correctness of the contract and the amount due.
Where the suit is on an account, the defendant is not precluded from showing that he did not make the contract, out of which the account arose.
Railroad Co. v. Kelly, 131 Miss. 133, 95 So. 131.
The evidence of the express agent that he sent the radio back to Farad Co. in the absence of a showing to the contrary gives rise to a presumption that it was received by the company, and though this presumption is only prima facie, it becomes conclusive in the absence of a showing to the contrary.
This suit was instituted by appellant in the court of a justice of the peace and was founded on a written contract between the parties. The affidavit by appellant, which served as the initial "written statement of the cause of action," referred to the said written contract as an exhibit and by other appropriate recitals the said contract was made a part of, and a copy of the contract was actually attached to, the affidavit, all as contemplated by section 2730, Code 1906 (section 2384, Hemingway's Code 1927).
The appellee did not by sworn plea deny the execution by him of said written instrument, as required by section 1974, Code 1906 (section 1706, Hemingway's Code 1927). Nevertheless he was permitted, over the objection of plaintiff, to testify as a witness in his own behalf that he had never signed or executed said written contract upon which the suit was founded and which was made a part of the initial statement of the cause of action as aforementioned. The section last cited applies to cases instituted in justice courts, as well as in other courts, McBride v. Kilgore, 55 Miss. 242, and it was plain error to admit the said testimony.
The contract was for the purchase by appellee of a radio outfit, part of which was paid cash, the balance to be paid C.O.D. The contract contained an express stipulation against countermand. When the property was received at the express office, the express agent notified the purchaser, appellee, of its arrival, but appellee neglected to receive the shipment or to pay the charges, whereupon, under the rules governing C.O.D. express shipments, the express company, after the expiration of thirty days, returned the property to the shipper.
It is now argued by appellee that, since the express company had returned the property, the subject of the contract, to the shipper, that is to say, to the seller, appellant here, the presumption arises that the seller had received the goods back, and that this would work a rescission of the contract, so that there would remain no right of action upon it. This argument is, in effect and in brief, that by resort to a presumption appellee could discharge himself of the obligations of his contract simply by neglecting to perform it.
Presumptions of fact are founded upon the logic of strong probabilities. Since in almost all cases when goods are shipped by a responsible common carrier they reach the consignee, there is a presumption to that effect in a particular case; there being no evidence to the contrary. And if we might here pass over the general rule that one presumption cannot be based upon another presumption, and still following the logic of probabilities, we could say that, where the consignee is under a duty to accept the shipment, or where it is to his advantage to do so, no illegality or immorality being involved, there is the further presumption that the consignee not only received but also accepted, this still would not aid the appellee here, for the presumption must cease in any event at the point where the probabilities cease, and, since it is not probable that a consignee, being under no duty, will accept what is to his legal disadvantage to accept, there is then no presumption, in a case like this, of an acceptance upon the return of the shipment. The presumption which appellee invokes does not extend to the point which necessarily must be reached in order to permit him to prevail, in this case, upon the record as it now stands.
Reversed and remanded.