January 4, 1932.
1. EVIDENCE. Language at bottom of note, "On Buick auto," was not ambiguous so as to permit parol evidence to show what language meant.
Word "on" is defined as indicating a basis or ground of action, in reference or relation to, with respect to, for on account, and the ordinary mind would construe the language quoted as a statement of the consideration for the note, as it was in fact.
Parol evidence is not admissible to add to contract a provision which it did not contain, where there is no ambiguity.
APPEAL from circuit court of Leake county; HON. D.M. ANDERSON, Judge.
Ross R. Barnett and E.L. Shelton, both of Jackson, for appellant.
It is a general rule of law, that marginal notations or memoranda placed on a bill or note at the time of the execution thereof with the intention of making them a part of the contract, constitute a part of the written contract and must be construed with the body of the instrument to arrive at the true agreement existing between the parties.
8 C.J., p. 323; Bay v. Schrader, 50 Miss. 326; Key v. Cross, 23 Miss. 598; Effinger v. Richards, 35 Miss. 54; Sholby v. Schuchardt, 13 A.L.R. 247, 251.
It is the general rule that where a contract is uncertain, ambiguous or incomplete the whole agreement may be proven.
10 R.C.L., p. 1030; Scholbe v. Schuharde, 292 Ill. 529, 13 A.L.R. 247; Sacred Heart Church Building Committee v. Mason, 233 Ala. 256, 92 So. 498; Niles v. Sire, 94 N.Y.S. 586; Kupperman v. Hartwell, 4 Am. Dec. 225; Jones v. Hales, 4 Mass. 245; Emmett v. Penoyer, 151 N.Y. 564, 45 N.E. 1041; Underwood v. Greenwich Ins. Co., 191 N.Y. 424, 35 N.E. 939, 127 Am. St. Rep. 432.
The rule excluding parol evidence to vary or contradict a written instrument applies only to controversies between parties to the instrument and those claiming under them. It has no application between a party to the instrument on the one hand and a stranger to it on the other for the stranger not having assented to the contract is not bound by it and is therefore at liberty when his rights are concerned to show that the written instrument does not express the full or true character of the transaction and when the stranger to the instrument is thus free to vary or contradict it by parol, his adversary, although a party to the instrument, may be equally free to do so.
22 C.J., p. 292.
The holder of a retention title can follow his car through the hands of any number of innocent purchasers, whether they are engaged in the public business of selling cars or not, and reclaim possession of it when found.
Where the words "In facilities" were written on the left side of a plain promissory note of the usual form, parol testimony to explain the meaning of these words was admitted.
Springfield Bank v. Merrick, 14 Mass. 322.
F.E. Leach, of Carthage, for appellee.
It is a well established rule of the common law, which has been embodied in statutes in a number of states, that when the judgment of any court, or any other judicial or official proceeding, or any grant or other disposition of property, or any contract, agreement or undertaking has been reduced to writing and is evidenced by a document or series of documents, the contents of such documents cannot be contradicted, altered, added to, or varied by parol or extrinsic evidence.
In its commonly accepted terms the notation referred to means simply that the note was given as a consideration of the balance due on the Buick auto, and even to attempt to write into the note by an oral agreement that it was intended by that expression, so simple and plain, and so common in business transactions of that kind, to retain the title in the seller until the note was paid, would be the equivalent of striking down the rule so long and wisely established as to the law of written contracts.
A latent ambiguity may be explained by extrinsic evidence but a patent ambiguity may not.
22 C.J., pp. 1191-1197.
The appellant, L.E. Welch, brought this action of replevin in the circuit court of Leake county against appellee, M.B. Gant, to recover possession of an automobile described as "Buick automobile '28 model, brougham master six." At the close of the evidence the court directed a verdict for the appellee, and judgment was entered accordingly, from which judgment appellant prosecutes this appeal.
Appellant sold to Dr. K. Ozborn the Buick automobile involved; the latter made a cash payment on the agreed price of the automobile, leaving a balance due of two hundred dollars, for which he gave his promissory note as follows: "5 Months 10 days after date, for value received I as principal, promise to pay L.E. Welch or bearer, Two Hundred and no Dollars, at Leake county bank, Carthage, Mississippi. With interest at the rate of 8 per cent. per annum, after date, until paid, agreeing to pay all expenses incurred by suit or otherwise, in attempting the collection of this note, including reasonable attorney's fees. The drawers and endorsers severally waive presentation for payment, protest and notice of protest and nonpayment of this note, and all defenses on the ground of any extension of time of its payment that may be given by the bank is hereby authorized, at any time, to apply any money on deposit or otherwise to the makers or endorsers or either of them, to the payment of this note. On Buick Auto 28 model brougham master 6."
Later Dr. Ozborn sold the car to the Jackson Motor Car Company, and that concern, in turn, sold it to appellee.
Appellant's case is that, when he sold the car to Dr. Ozborn, he reserved the title until the balance of the purchase money was paid; and that the language at the bottom of the note, "On Buick Auto 28 model brougham master 6," was intended by the parties to evidence that agreement; and, under the decisions of this court, holding that a reservation of title (even verbal) to personal property by the seller as security for the purchase money is good against a bona fide purchaser without notice (the evidence for appellant tending to establish that fact), he was entitled to have the jury pass on the question. Appellant introduced parol evidence to that effect which was ruled out by the court on the ground that parol evidence was not admissible to vary or add to the terms of the note which evidenced the transaction between the parties.
The evidence showed, without conflict, that both the Jackson Motor Car Company and appellee were bona fide purchasers for value without notice of the fact that appellant had reserved the title to the car until it was paid for, when he sold it to Dr. Ozborn.
The question is whether or not the language in the note, "On Buick Auto 28 model brougham master 6," is ambiguous in its meaning. If it is, under the law parol evidence was permissible to make plain its meaning. On the other hand, if there is no ambiguity, parol evidence was not permissible, because the parties are presumed to have embodied in the note the entire terms of the contract.
Among the definitions of "on" laid down by Webster's New International Dictionary are, "indicating a basis or ground of action;" "in reference or relation to, with respect to;" "for on account."
We are of opinion that the language in question is without ambiguity; that the ordinary mind would at once construe it as a statement of the consideration for the note, as it was, in fact. As stated, the note was given for the balance of the purchase money due on the Buick automobile, and that is exactly what the language in question, construed with the balance of the language of the note, means. To permit parol evidence to show that the parties meant by this language that the title to the automobile was to be retained in the seller until paid for would be adding to the contract a provision it did not contain; and this cannot be done where there is no ambiguity in the contract.