Opinion
No. 32446.
December 7, 1936.
1. EVIDENCE.
Proceeding for enforcement of purchase-money lien was not invalid because seller did not show notary public, before whom affidavit of seizure which was made in Ohio was taken, had authority to take and certify affidavits, since court would take judicial notice of Ohio law authorizing notary public to administer and certify oaths (Code 1930, secs. 1598, 2243; Gen. Code Ohio 1926, sec. 126).
2. SALES.
Proceeding for seizure of property on which seller had purchase-money lien held not invalid because affidavit for seizure was made before officer in another state, since statute, providing that person having purchase-money lien "can enforce same" by making affidavit before proper officer of county where subject-matter of lien may be, is not mandatory (Code 1930, secs. 745, 2243).
3. JUSTICES OF THE PEACE.
In proceeding to enforce seller's purchase-money lien brought in justice court and appealed to circuit court, permitting seller in circuit court to file affidavit for writ of seizure, contract for sale of goods on which seller had lien and note given for purchase-money, held proper, although circuit court would not have had original jurisdiction because of amount involved, since amendment did not state new cause of action, but merely explained cause of action already stated (Code 1930, secs. 527, 2078, 2243).
4. EVIDENCE.
In proceeding to enforce purchase-money lien for unpaid balance due on an accounting machine for use of business establishment, evidence that salesman misrepresented machine and that purchasers received offer to buy machine from third party, who, upon being told by seller that it would not recognize proposed purchase, refused to complete the transaction, held inadmissible to contradict terms of contract providing that it could not be changed by oral agreement and that machine could not be sold without consent of seller (Code 1930, sec. 2243).
5. EVIDENCE.
Contract, when reduced to writing, which is not ambiguous on its face, is exclusive agreement of parties, and all verbal representations and negotiations antedating completion of contract are merged therein and are not subject to proof changing or contradicting meaning of contract.
APPEAL from the circuit court of Lowndes county. HON.W.W. MAGRUDER, Judge.
Sturdivant Hollomon, of Columbus, for appellants.
When the written order and the note executed by appellants was offered by the appellee in the circuit court as evidence, the appellants moved the court to exclude both the written order and the note, for the reason that they were not lodged with the justice of the peace, when the suit was brought, or at any time, in his court. The circuit court thereupon stated that the original contract and note should have been filed as the plaintiff's cause of action in the court of the justice of the peace and suggested to the attorney for the plaintiff that he might file the contract and notes as his cause of action in the circuit court; and then the plaintiff asked the court to permit him to attach to the affidavit in this cause a copy of the contract and also a copy of the note. The court allowed the amendment to be made over the objection of the appellants.
Sections 527 and 2078, Code of 1930; Anthony v. Bassett, 159 So. 854.
The appellee filed with his affidavit in the justice court what he called a statement of account, when the foundation of his claim was the written order and the note. These not having been filed in the justice court, they could not be filed in the circuit court over objection, and we insist that the court was in error in allowing the appellee to amend his pleadings by attaching the order and note to his affidavit in the circuit court.
The court erred in overruling appellants' motion to dismiss the appellee's suit because the affidavit was not made before an officer authorized to administer oaths in the county of Lowndes, state of Mississippi, where the subject matter of the lien was located.
The court erred in overruling appellants' motion to dismiss the suit because the notary public in Ohio is not shown to have had authority to take affidavits.
Section 2239, Code of 1930.
The evidence shows that this property was situated in Columbus, Lowndes county, state of Mississippi, and under section 2239, we insist that the affidavit for a purchase money lien should have been made before an officer authorized to administer oaths in Lowndes county, state of Mississippi. In this case the affidavit was made before a notary public in the state of Ohio. This is a very drastic measure and the Legislature intended to provide protection for the one in possession of personal property against unauthorized or improper seizures by providing that if any one wished to make affidavit for this purchase-money lien, he should do so before some officer in the county where the property was situated.
Section 2243, Code of 1930.
If it be admitted for the sake of an argument, that an affidavit could be taken in such case before an officer in a foreign state, this affidavit should not be regarded as sufficient because there is nothing to show that the notary public was "authorized to administer oaths."
Section 745, Code of 1930.
The courts have taken judicial notice, in some instances, of the powers of officers in other jurisdictions to take affidavits; but as a general rule an affidavit taken outside the state will not be received until it is shown that the person before whom it was taken was one of those authorized to perform such acts.
2 C.J. 335; Knight v. Hill, 102 So. 221; Dorsey v. Kirven, 83 So. 341.
There is nothing in the affidavit to which the notary public's seal is attached to show any authority in the alleged notary public, R.M. Stewart, to take oaths or to certify to affidavits in the state of Ohio.
The court erred in overruling the motion of appellants to exclude the evidence offered by the appellee and to direct the jury to return a verdict for the appellants. The grounds of said motion being (1) that the promissory note and contract which is the basis of this action were not attached to the affidavit or lodged in said suit in the justice of the peace court in which said cause originated, and (2) said note and contract are not admissible in this court to which the case has been appealed, not having been lodged in the justice of the peace court.
Loving Loving, of Columbus, for appellee.
The appellee in this proceeding followed the statute strictly. Section 2243 of the Code of 1930 expressly provides that one desiring to institute this proceeding must do so by an affidavit, describing therein the property sought to be subjected, setting forth his claim, share or interest therein and asserting his lien thereon with an itemized statement of his demand, which was done in this case. The amendment was only made at the suggestion of the court below, the appellee being willing to stand upon the affidavit. This proposition is settled by this Honorable Court in the case of Lawson v. Dean, 144 Miss. 309, 109 So. 801.
The practice in courts of justices is very simple, and the courts are very liberal in the matter of amendments.
Roberts v. Weiler Haas, 52 Miss. 299; Greenwood Grocery Co. v. Burnett, 101 Miss. 573, 58 So. 482.
This court has always treated procedure in justices' court with great liberality.
A.B. Smith Co. v. Jones, 75 Miss. 325, 22 So. 802; Town v. H. Lupkin Son, 114 Miss. 693, 75 So. 546.
In the justice court a declaration is not necessary, all that is necessary is that some evidence of the indebtedness, state of account, or written statement of the cause of action is sufficient.
Miss. Central R. Co. v. May, 149 Miss. 334, 115 So. 561.
In this instance we filed an affidavit that conformed to the statute and thus this affidavit took the place of a declaration in the circuit court, and was a written statement of the appellee's cause of action.
Johnson v. Tabor, 101 Miss. 78, 57 So. 365.
The section under which the plaintiff in the court below, appellee here, proceeded is section 2243 of the Code of 1930, and which requires that in a proceeding of this kind, the same be started by an affidavit, with an itemized statement of his demand, which was done in this case. We made proper affidavit setting forth the goods that were sold, to which was attached an itemized statement of these goods, stating the amount due on them, who had them, asserting the lien, and asking that they be subjected to the satisfaction of the debt.
Quarles v. Hucherson, 139 Miss. 356, 104 So. 148; Wellford Withers v. Arnold, 162 Miss. 786, 140 So. 220; Panola County Bank v. J.O. Nessen Lbr. Co., 117 Miss. 593, 78 So. 516.
In construing statutes, the court looks to the entire legislation upon the subject, and determines the policy of the Legislature from a consideration of all the statutes together.
Middleton v. Lincoln County, 122 Miss. 673, 84 So. 907; Barrett v. School District, 123 Miss. 370, 85 So. 125; 3 Miss. Digest, Statutes, sec. 225; Hollandale Ice Co. v. Bd. of Sup'rs, Washington County, 171 Miss. 515, 157 So. 689.
It will be observed that section 2243, Code of 1906 does not make it mandatory that the affidavit shall be made before an officer in a county in which the property is located, but says this may be done. Taking this section in connection with section 745 of the Code 1930 it is clear that affidavits can be made out of the state.
There is no conflict between these two sections, that is, 745 and 2243, and they can be easily harmonized.
Too strict and literal constructions on sections in reference to affidavits should not be made, and an affidavit that covers what the law requires, and is sworn to by an officer, competent to administer oaths is sufficient.
The courts of this state take judicial notice of the fact that notaries public of other states are authorized to administer oaths where they are authorized and where they are not authorized, the presumption is that notaries public are authorized to take affidavits wherever they may be when within the jurisdiction of their appointment. This court is charged with this notice.
Sections 1598, 1565, Code of 1930.
It is well settled by numerous decisions of this court that where a contract is sent to a dealer for approval containing such a statement, that verbal understandings not embraced in the contract cannot be shown to defeat the effect of the signed instrument. It is a familiar rule of law that a contract reduced to writing, not ambiguous upon its face, is the exclusive agreement of the parties, and that all verbal representations and negotiations antedating the signing of the contract are merged therein, and cannot be proven to vary or contradict the meaning of the instrument as written.
Perrault v. White Sewing Machine Co., 157 Miss. 167, 127 So. 271; Becker Co. v. Clardy, 96 Miss. 301, 51 So. 211, Ann. Cas. 1912B 355; Cape County Sav. Bank v. Gwin-Lewis Grocery Co., 123 Miss. 443, 86 So. 275; McCaskey Register Co. v. Swor, 154 Miss. 396, 122 So. 489.
We think it is fundamental law that a selling agent, in the absence of evidence to the contrary, is not empowered with authority to compromise a claim or after a sale is once made to modify its terms and conditions in any way, and especially in a matter of this kind, in which there are provisions against such.
Dahnke-Walker Milling Co. v. T.J. Phillips Sons, 117 Miss. 204, 78 So. 6.
Appellants, under the partnership name of Modern Cleaners, were engaged in the business of cleaning and pressing clothes in the city of Columbus. The appellee, an Ohio corporation with its principal place of business in the city of Alliance in that state, was engaged in selling vertical registers, a machine used in business establishments. Appellants bought one of the machines, for which they agreed to pay one hundred eighty-three dollars and forty-one cents. They paid sixteen dollars and two cents cash, leaving a balance due of one hundred sixty-seven dollars and thirty-nine cents. They failed to make any further payments. Appellee thereupon proceeded, under section 2243, Code of 1930, to enforce a purchase money lien for the unpaid balance. The proceeding was had in a justice of the peace court in Lowndes county; there was a judgment in that court for appellants, and an appeal by appellee to the circuit court, where there was a trial de novo resulting in a judgment for appellee. From that judgment appellants prosecute this appeal.
The register was sold to appellants by one of appellee's traveling salesmen. The agreement between the parties consisted of a written contract of sale and a note.
In connection with each contention relied on by appellants for reversal, we will undertake to make the necessary statement of the case for a proper consideration of the question involved. The affidavit for the seizure was made by one of appellee's officers before a notary public of the city of Alliance, Ohio. Appellants argue that the proceeding was void because it was not shown that the notary public had authority to take and certify to affidavits. It may be that the courts will presume, until the contrary is shown, that the authority for a foreign officer under the laws of his state is the same as an officer of similar character under the law of this state. We do not decide that question. A complete answer to appellants' contention is section 1598, Code of 1930, and section 126 of the Ohio Gen. Code of 1926. That section of our Code provides that when any question shall arise as to the law of the United States, or any other state or territory of the United States, or District of Columbia, or any foreign country, the court shall take judicial notice of such law in the same manner as if the question arose under the law of this state. The Ohio statute provides, among other things, that notary publics shall have the power within the county or counties for which they are appointed to administer oaths and certify to the same.
Appellants contend that the proceeding was unauthorized and void on another ground — that under section 2243, Code of 1930, the affidavit was required to be made before an officer authorized to administer oaths in the county where the machine was situated. The statute provides, with reference to the making of the affidavit, that any person having a purchase money lien "can enforce the same by making affidavit before any officer authorized to administer oaths of any county where the subject-matter of the lien may be." The argument is that the provision as to the officer before whom the affidavit can be made is exclusive — that no other officer has any authority to take the affidavit. That provision must be construed in connection with section 745 of the Code, which provides, in substance, that any judge of any court of record, clerk of such court, master in chancery, member of the board of supervisors, justice of the peace, notary public, mayor, or police justice of a city, town, or village, "and any officer of any other state, or of the United States, authorized by the law thereof to administer oaths," may administer oaths and certify the same whenever necessary or proper in a proceeding in any court of this state. Section 2243 is not mandatory in its language as to the officer taking the affidavit; it provides, "can enforce the same by making affidavit."
A like question was involved in Cassedy v. Mayer, 64 Miss. 356, 1 So. 510. Section 1302, Rev. Code of 1880, provided that if any lessor of lands made affidavit to certain facts before "any justice of the peace of the county where such lands . . . are situated," such justice of the peace should issue an attachment for the rent. The affidavit in that case was made before a justice of the peace of a county other than the one wherein the land was situated. The attachment was issued by a justice of the peace of the county where the land was situated. Upon motion in the circuit court the affidavit was quashed and the case dismissed on the ground that the affidavit was not made before a justice of the peace of the county where the land was situated. The Supreme Court reversed the judgment. Construing section 2294, Rev. Code of 1880, along with section 1302, the court held that a justice of the peace was authorized to administer oaths wherever the same was necessary in any proceeding in any court under any law of this state. We hold, therefore, that this attack on the affidavit is without merit.
On the trial in the circuit court appellants moved to dismiss the case because the written contract for the sale of the machine and the note given for the purchase money were not attached to and made a part of the affidavit for the writ of seizure in the justice of the peace court. Appellee was permitted by the court to file with the affidavit the contract and note. Thereupon the motion to dismiss was overruled. Appellants argue that under sections 2078 and 527, Code of 1930, the written contract and note evidencing the transaction, or copies thereof, should have been attached to the affidavit for the writ in the justice of the peace court — that they were the foundation of the action, and without them no cause of action was stated until the amendment was made, which, in effect, was the beginning of the action in the circuit court, which had no jurisdiction because the amount involved was less than two hundred dollars. Section 2078 provides, among other things, that any one desiring to sue before a justice of the peace shall lodge with him the evidence of debt, statement of account, or other written statement of the cause of action. Section 527 provides that a copy of any writing of which profert is made, or ought to be made, in any pleading, shall be annexed to or filed with the pleading, with the names of the subscribing witnesses, if any, "and evidence thereof shall not be given at the trial unless so annexed or filed; and every writing filed with any pleading, as part of it, shall thereby become a part of it, and be so considered for all purposes of the action." The point is whether this amendment was permissible in the circuit court. We are of the opinion that it was. The statement of the cause of action in the justice of the peace court was not void but only defective. In the affidavit for the writ filed in the justice of the peace court the cause of action is clearly set out; it describes the sale of the machine, the date of the sale, the price, the cash payment, and the deferred payments, and that a lien was retained for the payment of the unpaid purchase money. Attached to the affidavit was an itemized statement of the account, showing price and cash payment. The amendment did not state a new and different cause of action, but simply elaborated and explained the cause of action already stated.
Lawson v. Dean, 144 Miss. 309, 109 So. 801, 802, 110 So. 797, was begun in the justice of the peace court; its foundation was a breach of an administrator's bond. In the statement of the cause filed in the justice of the peace court neither the bond nor a copy was made an exhibit. On appeal to the circuit court the plaintiff was permitted to introduce the bond in evidence. The Supreme Court held this was error and reversed the judgment. The court said: "Unless the declaration is amended by attaching a copy of the bond sued on, evidence thereof should be excluded upon proper objection." The court, therefore, necessarily held that the amendment could be made in the circuit court for the first time.
On the trial appellants offered to prove that the machine was sold to them by sample through one of appellee's traveling salesmen; that the salesman warranted that the machine was suitable for their business as dry cleaners and dyers; that it would hold all their accounts; that it would enable them to post and keep all their accounts in such manner that they would be up to date at all times and could be reached in a few seconds; that it would provide individual and separate compartments for each account; then when the machine arrived, instead of coming up to the representations, it was found to be entirely unsuitable for appellants' business; that it would not accommodate the accounts of their customers; that it had separate and individual compartments for less than one-half of their accounts; that they could not turn readily and speedily to any account desired; that many of them could be reached only by extended search and delay; that when appellants discovered that the representations and warranty had been breached, they offered to return the machine to appellee, but the latter declined to accept the same; that thereafter appellants, in order to save appellee harmless, obtained a purchaser for the machine, Mrs. Ellis, who was ready and willing to purchase and pay for the same, and that they delivered it to her and notified appellee thereof; that thereupon appellee sent a representative to Columbus, who saw Mrs. Ellis and told her that her purchase would not be recognized and sold her another machine. The court sustained appellee's objection to the proferred testimony upon the ground that it was contradictory of the written contract between the parties. The contract provides that the conditions and stipulations set out therein cannot be altered or varied by any verbal agreement or understanding between the parties, and further that the machine should not be sold without the consent of appellee.
A contract when reduced to writing, which is not ambiguous upon its face, is the exclusive agreement of the parties, and all verbal representations and negotiations antedating the completion of the contract are merged therein and are not subject to proof changing or contradicting the meaning of the instrument. Perrault v. White Sewing Machine Co., 157 Miss. 167, 127 So. 271, and numerous authorities there cited. There was no error in excluding the proposed evidence.
Affirmed.