September 25, 1939. Suggestion of Error Overruled October 23, 1939.
Where finance company, before delivering possession of repossessed automobile to automobile dealer for resale, required dealer to deliver to it conditional sales contract held by dealer on other automobile, and gave dealer a receipt reciting that such contracts were being accepted "for collection," and that net amount realized would be credited when and if collections were made, there was an assignment to the company for collection, coupled with an interest, and hence when the automobile delivered to the dealer was destroyed, finance company was entitled to possession of the contract and of the automobile covered thereby until its interest was satisfied (Code 1930, sec. 2853).
When a chose, capable of legal assignment, is assigned absolutely, but for the purpose of collection, legal title thereto vests in assignee, and payment to assignee discharges the debtor, though equitable title is in another (Code 1930, sec. 2853).
In replevin action by finance company against automobile dealer for possession of automobile, parol testimony that repossession receipt given by dealer to company did not mean that automobile was company's property, as its clear recitals stipulated, was inadmissible, where the receipt was contractual in nature.
Parol testimony is inadmissible to vary or change the terms of a written contract.
Parol testimony is inadmissible to explain or vary an indorsement of conditional sales contract and note, irrespective of whether the indorsement is full or restrictive.
APPEAL from the circuit court of Jones county; HON.W.J. PACK, Judge.
A.S. Scott, of Laurel, for appellant.
A receipt, merely a receipt like this repossession receipt, clearly not contractual in its nature, is always subject to be explained. But of course always so, even if contractual in its nature, if obtained through fraud; it doesn't vary it; it destroys it. Does it require citation of authority that a receipt may be explained by parol testimony? Certainly not. But if it is said that this is a receipt contractual in its nature — which it isn't — yet under our plea of "not guilty" in this replevin suit we could always introduce testimony to show fraud, which annihilates all contracts — Nash Motor Company v. Childers, 125 So. 708.
5 C.J., page 958, Sec. 144, says: "Assignment for collection: When a chose, capable of legal assignment, is assigned absolutely to one, but the assignment is made for the purpose of collection, the legal title thereto vests in the assignee, and it is no concern of the debtor that the equitable title is in another, and payment to the assignee discharges the debtor."
5 C.J., page 958, says: "A power of attorney to collect a claim, although declared to be irrevocable, is not an assignment and does not preclude a subsequent release by the alleged assignor."
Napier v. McLeod, 9 Wend. (N.Y.) 120.
Also, 5 C.J., page 598, says: "An assignment merely for collection does not transfer the beneficial ownership to the assignee."
Porter v. Davis, 2 How. Pr. (N.Y.) 30.
Yet in case at bar, there is no sort of assignment, even one for collection, as far as exhibit "B" discloses; none at all, and the said exhibit is certainly controlling.
5 C.J. 958, note 86; Bigelow on Bills, Notes and Cheques (2 Ed.), 250; Austin v. Curtis, 31 Vt. 64; Oates v. First National Bank, 100 U.S. 239; Bigelow's L.C. Bills Notes, 495, 500, 503; Payne v. Flournoy, 29 Ark. 500.
In case of holder in due course, payment to original holder after transfer is insufficient, but not so to mere agent for collection.
8 C.J. 598, Sec. 835; Heckler v. Boylan, 126 Iowa 162, 101 N.W. 755; Page Woven Wire Fence Co. v. Pool, 133 Mich. 323, 94 N.W. 1053.
Recitals in exhibit controls allegations in bill in conflict, where exhibit is made basis of suit.
These authorities are cited in final conclusion to support our contention that when the C.I.T. Corporation filed its declaration alleging that Taylor had assigned and delivered for collection the Rutland contract; and, as shown by Exhibit "B" attached thereto, that when the demurrer was duly interposed, pointing out the fatal variance in the allegation of the declaration and the controlling Exhibit "B" — and that exhibit showed on its face that there was no assignment of anything by anyone to anyone — we say the demurrer should have been promptly sustained, and that parol testimony should not have been introduced to attempt to add to or take away from the basis of lawsuit Exhibit "B". We still submit that we had a perfect right to hold the plaintiff to the allegations made in its declaration, and the controlling exhibit attached thereto, and that when the said exhibit did show on its face that there was no sort of an assignment, no passing of right, title or interest whatsoever, then this variance cannot be reconciled under any theory known to our system of pleadings. The cases we have cited touching this point are certainly conclusive, and it is only regretable that we should be forced to go to the court of last resort to protect our rights in the premises. But even so, since the county court allowed testimony to be introduced to attempt to prove the there was an assignment or pledge, made by Taylor to C.I.T. Corporation, in open violation of the rule preventing a written contract from being varied or contradicted by parol testimony, yet the jury after hearing all the evidence, under the instructions of the court, promptly returned a verdict in favor of the appellant, E.B. Taylor; and that it, of course, conclusive. We most respectfully submit, therefore, that this cause should be reversed and rendered.
Deavours Hilbun and Beard Pack, all of Laurel, for appellee.
We believe that we shall be able to spare the time and patience of the court by directing attention, at the very outset of our argument, to the nature of the so-called repossession receipt and its effect upon this cause. For this instrument, of its own force and irrespective of other questions, conclusively establishes the right of appellee to an affirmance of the circuit court's judgment.
This document is neither in fact nor in law a mere receipt, being contractual in its nature and therefore not susceptible to variation by parol testimony. A writing, though in the form of a receipt, may be, and very often is, conclusive.
Wigmore on Evidence (2 Ed.), Sec. 2432; Baum v. Lynn, 72 Miss. 932, 18 So. 428; Johnson v. Johnson, 74 Miss. 549, 21 So. 147; English v. N.O. N.E., 100 Miss. 575, 56 So. 665; A. V.R. Co. v. Kropp, 129 Miss. 616, 92 So. 691; Orgill Bros. v. Polk, 155 Miss. 402, 124 So. 649; 6 C.J. 1106.
This written contract of bailment cannot be varied by parol evidence of appellant that he did or might have intended something else, which is not embraced within the four corners of the instrument. That parol evidence is not admissible to vary, alter or contradict the terms of a written contract, whether it be a contract of bailment or of something else, is a principle so rudimentary that it requires no citation of authority. But in addition to, and aside from that principle, it is equally well established that a bailee is estopped to deny the title of his bailor and attempt to set up in himself the ownership of the property bailed.
3 R.C.L. 87; 22 C.J. 1107.
Appellant contends the repossession receipt was obtained through fraudulent representations, and the court ought therefore to take into consideration his testimony that he did not intend to make of himself a bailee and did not intend to disclaim ownership of the automobile. One may not, merely by crying fraud, open the doors for admission of parol evidence to change or contradict the terms of a written instrument. That is the right only of one who does not merely assert fraud but also actually proves it — and proves it clearly and convincingly.
Griffith's Chan. Practice, Sec. 589.
A writing must be construed by the court and not by the jury.
Randolph v. Govan, 14 S. M. 9; Benson v. Benson, 24 Miss. 625; Beasley v. Evans, 35 Miss. 192; Fairly v. Fairly, 38 Miss. 280.
We bear in mind that it is not ordinarily necessary that a plaintiff in replevin prove title in himself replevin being a possessory action and it is not necessary in this case. But appellant's sole defense being ownership in himself it follows that if ownership or title be found in appellee then appellant's defense has failed. On the other hand, appellee may have the right to possession without having title to the automobile.
Trenholm v. Miles, 102 Miss. 835, 59 So. 930; Ross-Meehan v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364; Peets Norman Co. v. Baker, 95 Miss. 580, 48 So. 898; 5 C.J. 598 and note 86; Newman v. Bank of Greenville, 66 Miss. 323, 5 So. 753.
Appellant contends that Exhibit B was not an assignment, or sale, or assignment for collection, or pledge, but that it merely created an agency for collection. As to this last possible construction of Exhibit B, it is not only foreign to the record but it is somewhat of a strain on our ability at hypothesis to assume that the C.I.T. Corporation is a collection agency and not a finance company.
Argued orally by A.S. Scott, for appellant, and by Sam V. Pack, for appellee.
The appellee brought replevin in the county court of Jones County against appellant for the possession of an automobile. A trial in the county court resulted in a judgment for appellant. From that judgment, appellee appealed to the circuit court, where on the record made in the county court the circuit court held that the county court should have directed a verdict for appellee as requested. Judgment was accordingly entered in the circuit court for appellee, from which judgment this appeal is prosecuted.
The circuit judge embodied his findings of fact and conclusions of law in an opinion made a part of the record. We agree with such findings and conclusions and do not think we could do better than to adopt the same as the opinion of this Court:
"Appellant is a finance corporation engaged in financing dealers in automobiles, trucks, etc. Appellee was a dealer in automobiles. The general plan was for the dealer to sell his cars, take conditional sales contracts, which provided for installment payments, title to cars being retained until the cars were fully paid for. These conditional sales contracts were then assigned to appellant, and in return the purchase price was advanced by appellant to the dealer. If the purchaser defaulted in the installment payments and it became necessary to repossess the car, appellee was required to make good, or buy back these repossessed cars.
"Under this plan appellee had incurred a considerable indebtedness to appellant. In the course of business appellee sold a car to one Rutland, taking the usual conditional sales contract. This contract was assigned to appellant in the customary method, but for some reason appellant was not willing to take this contract as a credit risk and passed it back to appellee who carried the contract unaided by appellant. Thereafter a repossessed car, designated as the Ryan car was in the possession of appellant at New Orleans. It was thought the Ryan car could be sold to better advantage if returned to the trade territory of appellee. Accordingly an agreement was entered into between the parties for appellee to take the Ryan car from New Orleans to Hattiesburg. Before appellant would agree to this, however, the conditional sales contract held by appellee on the Rutland car, was delivered to appellant, together with other contracts. On delivery of these contracts, appellant executed and delivered to appellee an acknowledgment of the same which recites:
"`This will acknowledge receipt of the following contracts (naming them), which are being accepted for collection, it being understood that the net amount realized will be credited to the Central Motor Company when and if collections are made.'
"The Ryan car wrecked en route to Hattiesburg caught fire and burned up. There was a balance due on the Ryan car of $979.64. Appellant undertook collection from the purchaser of the Rutland car, but was unable to collect anything. Appellee later repossessed the Rutland car, but, as stated, appellant held the conditional sales contract for payment. Appellee refused to deliver the car to appellant on demand and the same was replevied. Hence this suit.
"Was the receipt given for the Rutland contract effective to entitle appellant to the possession of the car? I think it should be construed as an assignment for collection, coupled with an interest, and the appellant as collecting assignee. It is akin to the relation of bailee under a contract by which he is to perform certain services. The bailee would be entitled to possession of the chose in action and necessarily the proceeds thereof until his interest has been satisfied.
"It cannot be denied that appellant had an interest in the Rutland contract and it has the right to retain possession of the car until this interest is satisfied.
"Appellant also executed a repossession receipt for this, the Rutland car, which recites:
"Received from C.I.T. Corporation as its property, free from any damage, except as claimed on the reverse hereof, one Willys Deluxe Sedan (describe it) purchaser's name W.E. Rutland and Mrs. W.E. Rutland. Not to be demonstrated without C.I.T.'s written permission.'
"`When a chose, capable of legal assignment, is assigned absolutely to one, but the assignment is made for the purpose of collection, the legal title thereto vests in the assignee, and it is no concern of the debtor.' 5 C.J. page 958. Section 2853, Miss. Code 1930. Ross-Meehan Brake Shoe Foundry Co. v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364; Mississippi Cotton Seed Products Co. v. Canal Bank Trust Company, 172 Miss. 105, 159 So. 404.
"Appellee undertook to show by parol testimony, over objection, that the receipt introduced did not mean what the clear recitals stipulated. This was not permissible. The receipt given by appellant for the Rutland contract is more than a mere receipt. It is contractual in its nature and is protected against being changed or contradicted by parol testimony. Such testimony is inadmissible to vary or change the terms of a written contract. Orgill Bros. v. Polk, 155 Miss. 492, 124 So. 649; Alabama V.R. Co. v. Kropp, 129 Miss. 616, 92 So. 691, and authorities cited under these cases.
"It will be noted also that the Rutland contract and note bore the endorsement of appellee, and parol testimony is inadmissible to explain or vary an endorsement, and this is true whether the endorsement be full or restrictive. Hawkins v. Shields, 100 Miss. 739, 57 So. 4, 4 A.L.R. 760.
"It is significant that the so-called repossession receipt given by appellee to appellant expresses recognition of appellant's right to the Rutland car. It says: `Received from C.I.T. Corporation as its property.' (Emphasis supplied.)
"In the face of this principle of law, appellee was given the two instructions complained of, I do not think they announced the correct rule of law.
"From the foregoing facts, plaintiff was entitled to a directed verdict, and the case is, therefore, reversed and final judgment awarded to appellant."