Sistrunk ex rel. Sistrunk v. Wilson , 98 Miss. 672 ( 1910 )

.Anderson, J.,

delivered the opinion of the court.

.. This is a replevin suit for two mules, by appellant, Sistrunk, against the appellee, Brinson. The court below instructed the jury to return a verdict for appellee, which was done, and judgment entered accordingly, from which this, appeal is prosecuted. In the early part -of 1908 appellant sold his tenant, Charley Ross, a negro, two mules for two hundred and thirty dollars, to be paid January 1, 1909. On the 5th of March, 1908, the tenant, Ross, fo.r the purpose of securing an indebtedness he was- already due appellee, who was a merchant, and to obtain-from him supplies for the current year with which to. make.his crop, executed a deed of trust in his favor on the two mules in question and his crops to be raised on appellant’s land. At the same time, and as an inducement to appellee to supply his tenant, appellant, as landlord, executed. and delivered to appellee the following waiver:

Monticello, Miss., 3 — 5>—1908.

- '“This-is to certify that I will not sell Charlie Ross anything in the year 1908. Only claim 2$' 50'04b. bales for rent and 'what cotton is made on what is called the new ground, about eight acres, for payment on mules.

“D. W. Sistrunk.

“Witness: A. C. Brinson.”

And, at the request of appellant, appellee drew up what purports to be, and what appellee, claims appellant and Ross stated to him was, the contract between them for the sale and purchase of the mules in question, which’ was signed by Ross, and as follows:

“$230.00 January 1, 1908.

“January 1st, 1909, after date, I promise to pay to the order of Mrs. S. E. Sistrunk two hundred and thirty 00-100 dollars at ten per cent, from date. Value received. Note for two (2) mare mules, name Queen and Lucy. The mules is to be paid for on a certain piece of land' planted in cotton, about eight acres.

his

“Charley X Ross,

mark

“Witness: A. C. Brinson.”

Appellant ’s testimony tended to establish these facts: That he reserved the title to the mules until they were paid for, and so stated to appellee when the deed of trust, waiver, and note were executed'; that such reservation of title was intended to be embodied in the note, and appellee was so instructed when he wrote it, but, without the knowledge or consent of the appellant and his tenant, he fraudulently left it out; that he did not know appellee had taken a deed of trust on the mules. Appellee’s testimony tended to establish the facts: That the note was drawn and executed as intended, and as he was instructed by appellant and Ross to draw it; that the title to the mules was not reserved in appellant, who knew at the time that appellee was taking a deed of trust on them, and consented thereto. Ross paid neither appellee what he owed him nor appellant for the mules.

The court below gave the peremptory instruction for the appellee on the theory that, the title to the mules not being reserved in the note evidencing the contract of sale and purchase between appellant and Ross, it was incompetent to show by parol testimony such reservation; that so to do would violate the principle that the terms of a written contract may not be varied by parol. That principle of the law of evidence, though sound, was erroneously applied to the facts of the case. Appellant’s testimony tended to establish that the reservation of title was, by appellee, fraudulently omitted from the note; that in fact it was not the contract entered into. The terms of a written contract may not be added to nor taken from by parol; but such testimony is admissible to show that, through the fraud of the draftsman, the writing does not evidence the real contract. This question should have been submitted to the jury on proper instructions.

Reversed and remanded.