Johnson v. Stone, 69 Miss. 826

Johnson v. Stone

69 Miss. 826 | Miss. | 1892

Cooper, J.,

delivered the opinion of the court.

The facts of this case are peculiar, and, under its circumstances, we do not think the conduct of the defendant in reference to his caption of the deed to the land was irrelevant evidence on the trial of the issue herein involved. The plaintiff’s contention is that the defendant, having sold to him his farm and stock upon credit, became dissatisfied with the sale, and set himself to annul it; that, in furtherance of this purpose, he seized the deed for the land (which had been delivered to the plaintiff) when the plaintiff had handed it to Foster, the defendant’s attorney, to aid him in the preparation of a contract to secure the rent for the first year if the first installment of the purchase-money should not be made, and, in further prosecution of the same scheme, set up a false, claim that plaintiff, a few days thereafter, had, by agreement with him, rescinded the whole contract. True, this is controverted by the defendant, but the agreement for rescission upon which he relies and which he seeks to establish, has relation not only to the contract for the sale of the personal property but also to that of the land. It is to be borne in mind that the sale of both personalty and realty was, in fact, one transaction, though evidenced by different instruments, and that the alleged rescission was as to both. The personalty and realty are inseparably blended at the beginning and alleged end of the negotiations, and it is immaterial that a part of the subj ect-matter is land and a part realty. If the sale had been of personalty only, a part of which had been delivered at the time of the sale and a part agreed to be thereafter delivered, and if the defendant, contending that he had a right to coerce the plaintiff into compliance with certain agreements claimed by him to have been made in reference to the sale, had seized, by force, the personalty delivered to the plaintiff, and declared that it should only be returned to him upon his submitting to defendant’s claim, and had afterwards refused to deliver up the other personalty at the time fixed by the original agreement, and, being sued for such property, *832had set up a rescission of the whole sale by agreement with the plaintiff, it would not be doubted that it would be competent for the plaintiff to show, and for the jury to' find, that the defendant was engaged in one single scheme, and was actuated by one illegal purpose common to all the property. If, under such circumstances, what he did or said at one time or another would be competent evidence, though one act or declaration might relate to only a part of the whole property, it is impossible to deny the competency of the testimony here, for there is no difference in principle in the case presented from the one supposed. Certainly, an act competent as evidence, because the property to which it relates is a part of a mass, loses nothing of its relevancy for the mere reason that a part of the property is land and another personalty.

The court, however, erred in admitting the declaration filed by the plaintiff in the suit brought by him against Foster and the defendant to recover the deed, to be read in evidence in this case. The allegations of the declaration were the mere statements of the pleader, and, even if they were the statements of the plaintiff, they Avould be only hearsay. A part}? cannot, by putting an ex parte statement in the shape of pleading, give it competency as .testimony.

The second instruction for the plaintiff is upon the weight of evidence, and should not have been given. The law knows nothing about the relative value of admissions; that is a matter for the 'consideration of the jury. Counsel may argue the probable value of such admissions to the jury, and show the circumstances under which they were made as affecting their weight; but the fact that this may be done, or that a text-writer or court states in argument “that an admission casually made is of little weight,” does not make it a proper subject to be given in charge to the jury.

We fail to perceive any necessity or propriety in giving the instructions marked two and three in the record. The sixth instruction was clearly erroneous. There Avas no contention about the existence of all the facts therein recited. It ignores *833the real contention of the defendant, that there had been a rescission of the contract of sale, and peremptorily tells the jury to find for the plaintiff if it believes certain nncontroverted facts, which certainly did exist, but which, existing, did not touch the real contention developed by the evidence.

The judgment is reversed.