Opinion
No. 27821.
June 10, 1929.
1. EVIDENCE. Jury as well as judge is bound by uncontradicted, reasonable testimony.
Jury as well as the judge is bound by uncontradicted, reasonable testimony, though oral testimony not otherwise contradicted may be opposed by physical facts or by the facts of common knowledge.
2. TRIAL. Reasonable and well-founded inference of want of bona fides presents case for jury and not for court.
Where a reasonable and well-founded inference of a want of bona fide may be drawn, the case is for the jury and not for the court, though court has duty of guarding the line between solidly substantiated direct inferences and those other conclusions which are not of such character, but are conjectures or suspicions or inferences based solely upon other inferences.
Loving Loving, of Columbus, for appellant.
Fraud in order to vitiate a contract must relate to a present or preexisting fact, and cannot ordinarily be predicated on unfulfilled promises or statements as to future events.
Security Finance Co. v. Sharpe, 119 So. 829, 152 Miss. 286; 56 A.L.R. 13; 51 A.L.R. 29.
Mere suspicion is not sufficient to establish fraud.
Willoughby v. Pope, 101 Miss. 808, 58 So. 705.
Fraud is never presumed, and must be directly and specifically charged and clearly proven.
Co-Operative Oil Co. v. Greenwood Agency Co., 148 Miss. 536, 114 So. 397.
Frierson Weaver and Lincoln Lincoln, of Columbus, for appellee.
Where the contract was consummated upon its approval at the office of the seller in Iowa, and the notes executed by the buyer were payable at Iowa City, Iowa, such notes are Iowa contracts, and are governed by the laws of that state.
Security Co. v. Sharpe, 119 So. 829.
The rule that parol representations are not admissible to vary the terms of a written agreement has no application to representations which amount to a fraud practiced in procuring such agreement.
Hinkley v. Oil Pipe Line Company, 119 A.S.R. 564, 573, 132 Iowa 396, 107 N.W. 629; Bonewell et al. v. Jacobson (Iowa), 106 N.W. 614, 5 L.R.A. (N.S.), 436; Barrie v. Miller, 104 Ga. 312, 69 A.S.R. 171, 32 S.E. 840; Dowagiac Mfg. Co. v. Gibson, 73 Iowa 525, 4 A.S.R. 697, 35 N.W. 603; Arnhold v. National Analine Chemical Co., 56 A.L.R. 20 F.2d 364.
Parol evidence rule does not preclude showing fraud in the inducement of a contract, merely because the contract provides that the writing contains all the terms involved.
4 Wigmore on Evidence (2 Ed.), 2439; 56 A.L.R. 13; Bridger v. Goldsmith, 143 N.Y. 421, 38 N.E. 458, as quoted in the Iowa case of Jordan v. Nelson, 178 N.W. 544, 10 A.L.R. 1464, 1470; Stevens v. Venema, 168 N.W. 531, L.R.A. 1918B, 1145-1146; Stevens v. Pearson, 138 Minn. 72, 163 N.W. 769.
It is earnestly urged, in an able and persuasive brief on the suggestion of error, that, if we had applied the law of Iowa to the facts in this case, the result must have been an affirmance. So doing, and comparing the facts with those in Security Finance Co. v. Sharpe, 119 So. 829, recently decided by Division A, wherein the law of Iowa was applied and making a careful review of the transcribed records in both these cases, we find that substantially every point made in this case was urged in that case, and that the controlling facts in that case are so similar to this that, in point of applicability of law, the two cases are not to be distinguished. The material facts from which it is insisted in this case that the jury could infer a want of bona fides in the purchaser of the notes sued on were as strongly present in the Sharpe case, and in some respects more so; for in that case the plaintiff declined to answer certain questions from which inferences adverse to bona fides might be drawn, whereas, no such feature is present in this case. We apply the substantive law of Iowa, but as to the adjective law we look alone to our own principles and rules of procedure. If, as we understand it to be contended by appellee, it is a rule of procedure in Iowa that the jury may disbelieve the most positive evidence, although it stands uncontradicted, we say there is no such rule in Mississippi, but our rule is that the jury, as well as the judge, is bound by uncontradicted, reasonable testimony, although, of course, oral testimony not otherwise contradicted, may be opposed by physical facts or by the facts of common knowledge. The testimony of the appellant and his witnesses in this case is not contradicted by countervailing direct testimony, nor by physical facts, nor by facts of universal, common knowledge. It is true, as contended, that there are certain facts in this case from which an inference of the want of bona fides is sought to be drawn, and it is true that, when a reasonable and well-founded inference of a want of bona fides may be drawn, that is a case for the jury and not for the court. But it is the duty of the court to guard the line between solidly substantiated direct inferences and those other conclusions which are not of this character, but are conjectures or suspicions, or else are inferences based solely upon other inferences. A firm adherence to established and dependable, general rules of evidence in respect to defenses against commercial paper is essential, else a depreciation of credit would inevitably follow to the detriment of the great body of our people; and the court is not to be the less cautious in this respect merely because there may be an occasion, now and then, when some person, for want of the proper quantum of legal proof, may be imposed upon by fraud — the possibilities of which every man knows when he signs negotiable notes and puts them deliberately into circulation. After a most anxious and mature reconsideration of this case, and every feature of it, we are constrained to the conclusion that the inferences of the want of bona fides are not sufficiently cogent to form the basis of an adverse judgment.
Overruled.