Summary
stating that " waiver or estoppel may be shown by parol"
Summary of this case from McDonnell v. MillerOpinion
No. 34455.
February 24, 1941.
1. EVIDENCE.
A waiver or estoppel may be shown by parol.
2. EVIDENCE. Reformation of instruments.
Parol evidence is unavailing to contradict or vary a written instrument except in a direct proceeding in equity to reform the instrument.
3. MORTGAGES.
Where mortgagee knew that mortgagor could not raise crop unless mortgagor could use crop as security for advances, but mortgagee refused to make advances and permitted mortgagor to pledge crop to defendant who believed crop to be unincumbered, a "waiver" of priority or "estoppel" to assert such priority was effectuated as against the mortgagee, so that mortgagee was precluded from recovering for conversion of crop against defendant who had advanced to mortgagor, for the making of the crops, more than the amount sued for by the mortgagee.
4. PLEADING.
Inconsistent pleas may, in courts of law, be filed together.
5. APPEAL AND ERROR.
Where action for conversion of crop was first tried on theory that trust deed to mortgagee did not include crop, on second trial defendant could take the inconsistent position that although the trust deed included the crop the mortgagee had waived priority thereof in favor of defendant who furnished advances to make the crop.
APPEAL from the circuit court of Grenada county, HON. JNO. F. ALLEN, Judge.
Stone Stone, of Coffeeville, for appellant.
This case was before the court three years ago and was reported Stone et al v. Grenada Grocery Company et al., 180 Miss. 566, 178 So. 107. This case comes back on the identical record with the identical objection to the identical testimony; in fact, the testimony was not presented anew but was simply read over to the court by agreement, the record being accepted as the new testimony, and similar objections, the only possible pretense of difference being in the fact that the defense of the Grenada Grocery Company was put up the first time by notice under the general issue and the last time by special pleas and issue being joined on the special plea. It is the identical case, and we respectfully submit that this case has been settled once by the supreme court and cannot be reversed by the circuit court.
Counsel for appellee has built up a number of pages of argument and citation of authority here which we do not propose to attempt to answer on account of the fact that it is built up on unjustifiable premise; that is, that we have admitted that the Bank is estopped, when we have never admitted any such thing and have always clamored for the exclusion of this testimony.
Cowles Horton, of Grenada, for appellee.
This case is not at all the one decided by this court in Stone v. Grenada Grocery Company et al., 180 Miss. 566. In fact, the question now involved is entirely new and different from the one presented on the former appeal. On that appeal ( 180 Miss. 566) the only question involved was whether appellee could contradict Crenshaw's deed of trust to the Bank of Coffeeville. We argued there that they could do so on the ground that they were not in privity with Crenshaw and that the parol evidence rule did not apply to them. This court held that we were in error as to this and that appellee was bound by this rule of evidence preventing it from contradicting the terms of that trust deed. The case was remanded and thereafter appellee, for the first time, filed other pleas, among them a special plea which sets up an estoppel against appellant from enforcing its deed of trust but in no way contradicts any provision of the trust deed.
The only question now involved is whether appellant is estopped by reason of the admitted facts set forth in the appellee's special plea. Upon the facts set forth in said special plea and agreed to be true by the appellant we submit that the Bank is estopped to enforce its deed of trust against the appellee under all of the authorities.
Richardson v. Toliver, 71 Miss. 966, 16 So. 213; Cohn v. Smith, 64 Miss. 816, 2 So. 244; Seavey Sons v. Godbold, 99 Miss. 113, 54 So. 838; Phillips v. Thomas, 128 Miss. 729, 91 So. 420; Hawkins v. Nash, 163 Miss. 500, 140 So. 522; McCormick v. Blum, 75 Miss. 81, 21 So. 707; Williams v. Delta Grocery Cotton Company, 159 Miss. 575, 132 So. 732; Merchants' Farmers' Bank v. Pool Bros., 140 Miss. 799, 106 So. 627; Strauss Bros. v. Denton, 140 Miss. 745, 106 So. 257, 45 A.L.R. 341; Tonnar v. Washington Issaquena Bank, 140 Miss. 875, 105 So. 750; Quiver Gin Company v. Looney et al., 144 Miss. 709, 716, 111 So. 107; 5 R.C.L. 458, Sec. 94; 10 R.C.L. 694, Sec. 22; 16 R.C.L. 991, Sec. 507; 11 C.J. 624, Sec. 339; 21 C.J. 1154, 1156; 41 C.J. 596, Sec. 552; Kirk v. Hamilton et al., 102 U.S. 68, 26 L.Ed. 79.
This is the second appearance of this case in this Court. On the former appeal, Stone v. Grenada Grocery Co., 180 Miss. 566, 178 So. 107, the present appellee, holding a deed of trust subsequent in effective point of time to the date of the deed of trust held by the bank, attempted to show by parol that the deed of trust to the bank was not intended to cover the crops, and the sole question decided on that appeal was whether the rule excluding parol evidence to vary or contradict a written instrument extends to those claiming under the original parties, and it was held to include those in privity as well as the original parties.
Upon the return of the case, appellee filed an additional special plea, the substance of which is as follows:
That Crenshaw, the Bank's mortgagor, could not raise a crop during the year in question, unless he could use the crops as security for the advances necessary to make them, and he applied to his mortgagee, the bank, for said advances. The bank declined the application, but stated to Crenshaw that he would be allowed to encumber the crops as security to such other person as would be willing on that security to make the advances. Pursuant thereto, Crenshaw arranged with appellee, on the security of the crops, to make the advances which were subsequently made. The bank at all times had full knowledge of the entire situation; permitted and expressly assented that Crenshaw could and should pledge the crops to appellee, who believed them to be unencumbered, by virtue of which pledge to appellee the latter made advances to Crenshaw for the making of the crops, in excess of the amount sued for by the bank in this case, — the suit being for a conversion of the crops by appellee, as shown by the report on the first appeal.
When the case came on for its new trial, there was an agreement between the parties, dictated into the record, that the statements of fact set up in the aforementioned special plea were true and correct, but appellant objected to the introduction thereof. Acting upon the facts thus admitted, the court granted a peremptory instruction in favor of appellee.
Appellant urges that the case now here is precisely the same case that was before the Court on the first appeal. As already stated, the case before the Court on the first appeal was upon the contention sought to be sustained by parol that the crops were never included in the deed of trust to the bank, while the case now before us is that, although so included, the bank had waived the priority thereof in favor of appellee who furnished the advances to make the crop on the security of that crop.
A waiver or estoppel may be shown by parol, while that type of testimony is unavailing to contradict or vary a written instrument, except, of course, in a direct proceeding in equity to reform the instrument. That a waiver of priority or estoppel to assert such priority was effectuated as against the bank by the facts set out in the additional special plea, and admitted to be true, is supported by every textbook on the subject, and by numerous cases in our own reports, many of which are cited in appellee's brief, and will appear in the reporter's abstract, wherefore we deem it unnecessary to pursue that issue further.
It may be that what lies at the bottom of appellant's present contention is the thought that appellee should not be permitted, on the second trial, to take a position which involves an inconsistency as compared with that taken in the first trial. But under our statutes and decisions, inconsistent pleas may, in courts of law, be filed together, Lay v. Filmore, 75 Miss. 493, 23 So. 184; whence it follows that such pleas may be entertained on a new trial.
Affirmed.