Yazoo & Mississippi Valley Railroad v. Wilson ( 1903 )

Truly, J.,

delivered the opinion of the court.

In no view of the case, as made by this record, was the testimony as to the alleged verbal contract between Wilson & Oo. and the appellant admissible. This suit was brought by John Dykes & Oo. for the use of Wilson & Oo., and was for an alleged breach of contract existing between said Dykes & Oo. and appellant. After suit was filed the right of action involved therein was, in writing, assigned to appellees. The assignment transferred to appellees “the right of action against the Y. & M. Y. R. R. Co. for- damages caused by delay in the delivery of a shipment of one hundred bales of cotton under and by virtue of its export bill of lading No. 10, issued Oct. 1st, 1901.”

The right to recover in the original suit must be found in that assignment. Wilson & Co. acquired thereby only the rights of Dykes & Co., and the measure of their damages is the amount, if any, to which their assignors were entitled. The assignment and all the evidences in the case show that the only contract existing between Dykes & Co. and appellant was the bill of lading "referred to and introduced, and there is an utter absence of testi-momy to prove a breach of any of its conditions. There was no-proof of any unreasonable delay in the handling of the freight, and there is no provision in the contract guarantying delivery in Liverpool or any other port by any specified date.

The bill of lading, in express terms, provided that: “Clause 1, Sec. 2. No carrier is bound to carry said property by any particular train or vessel or in time for any particular market or otherwise than with as reasonable dispatch as its general business will permit.” If there was no breach of the contract declared on, there could be no recovery.

Under this state of case, the testimony of Holmes as to the alleged antecedent verbal contract existing between Wilson & Co. and appellant was admissible under none of the established rules of evidence. It was not admissible under the rule permitting, in exceptional cases, parol testimony to vary the terms of a written contract, even if that rule be applicable to cases of this character, upon which point we intimate no opinion. It was, in truth, an effort to establish another and different contract, between other and different parties, made and entered into on a different date, and, as that contract was not involved in the suit then pending, any testimony in reference to its terms was clearly incompetent. It was made prior to the purchase” of the cotton by Dykes & Co. prior to the delivery of the cotton to the railroad company, and before the issuance of the bill of lading on which the suit was based. Dykes & Co. were not parties to that alleged verbal contract, bad no interest in, knowledge .of, or connection witb it, and, so far as this record shows, were never advised of it. This seems to have been recognized in the court below, and an effort was made to avoid tbe difficulty by having Wilson & Co. substituted as plaintiffs under § 660, Code 1892, and by filing the amended bill of particulars herein. But this cannot avail the appellees. No recovery could be had by Dykes S¿ Co., or their assignees, under the written contract, because it had not been breached. No recovery could be had by Wilson & Co. under the verbal contract, because no cotton was delivered the carrier under its terms. As neither contract gave a good cause of action,•> the joining of the two could not advance the interest of appellees, because, having no right of action under either, their suit cannot be maintained by the attempt to use the terms of one contract to strengthen the claim under another. It was not permissible to resort to the terms of one contract, in an effort to show a violation of the conditions of another, under the circumstances in evidence here.

It might be remarked, in passing, that the proof as to any loss by either Wilson & Co. or Dykes & Co. is very vague and uncertain — not sufficient, in our judgment, to sustain a verdict for any amount, even if the proof had justified the submission of the case to the jury upon the question of the liability off the appellant.

Reversed and remanded.