107 F. 654 | 5th Cir. | 1901
Lead Opinion
after stating the case as above, delivered the opinion of the court.
As is shown by the foregoing statement of the case, there is some apparent discrepancy as to the grounds on which the objections to the testimony of the witness Tom King were sustained by the court. In the bill of exceptions No. 1 it is stated that this evidence was objected to by the plaintiff and excluded by the court on the ground that it varied the terms of the written mortgages, and because no authority was shown authorizing Atwater to hind the plaintiff. This relates to the ruling announced when the testimony was first offered by the defendant. After the defendant had closed its testimony, and the plaintiff had introduced numerous witnesses in rebuttal touching the agreement (or absence of any such agreement, as was claimed by the defendant, and sought to be supported’by the testimony of the witness King), that witness was recalled by the defendant, which again sought to show by him the facts that it had offered to prove by him when he was first on the stand, with such elaboration as the rebutting testimony which had been offered by the plaintiff invited. Thereupon the plaintiff renewed its objection, stating as the grounds thereof (1) that the witness showed that there was a written memorandum of the agreement, and that it was the best evidence of what the agreement was; that, as the plaintiff had not been notified to produce the written memorandum, parol evidence was not competent to show its contents; and (2) that the testimony of the witness was incompetent because it, varied the terms of the written mortgages, “which first objection was by the conrt sustained, and defendant was hot permited to introduce the testimony.” From this it would seem that the circuit court held that the nature and extent of the proof offered by the plaintiff in rebuttal waived the objection placed upon the ground that the proof varied the terms of the written mortgages, and the objection not being based in any measure on the ground that no authority was shown authorizing Atwater to bind the plaintiff, and it then for the first time appearing that at the time of the negotiations between the witness and Atwater, in the fall of 1898, to which the offered testimony related, Atwater made a short memorandum of their agreement (which was not signed by any person, but
The plaintiff, in its pleadings, seeks to support its claim or right to recover on the two mortgages taken by it from King & Fowler, and from the wording of the second ground of the objection made to the introduction of Tom King’s testimony when it was last offered, at the very close of the trial, it would seem that the trial was conducted on (he theory that the plaintiff’s claim was supported by the contract of the parties evidenced, by each of the mortgages, or by both of them considered together; for the language of the second ground of the objection is, “because it varied the terms of the written mortgages,” using the plural number. The rejected testimony tended to prove that in September Tom King, repesenting King & Fowler, and A. T. Atwater, representing the plaintiff, had agreed some time in the month of September, 1898, that King & Fowler might use whatever wool had been shorn, or that should be thereafter shorn, from any of the sheep covered by the mortgage that had been executed, for the purpose of procuring feed, supplies, and raising means for paying the running expenses of the sheep, and that the wool should he free from the lien of these mortgages. The second or renewal mortgage given by King & Fowler to the plaintiff was not given until October 28, 1898, prior to which date the wool in question was mortgaged to the defendant below for cash in hand paid to a larger amount than the proceeds of the sale thereof received by the defendant, and for which the plaintiff recovered judgment in this case. If, therefore, the fact was. as the excluded testimony tended to show, that such an agreement was had between the plaintiff and King & Fowler some time in the month of September, 1898, and that, acting on that agreement, King & Fowler procured money from the defendant: on the mortgage to it executed and delivered, and the money thereon received before the making of the second or renewal mortgage to the plaintiff, the execution and delivery of that mortgage could not affect the lien and right which the defendant acquired by .its contract of the earlier date. Bo far as relates to the rejection or admission of this excluded testimony, the plaintiff below can rely only on its original mortgage. That instrument, bearing date IMarch 25, 1898, by its express terms includes not only the sheep described, but the wool and fleece thereon when shorn. It provides that the same may be shorn by the mortgagors; that the wool may be marketed, with the consent of the mortgagee, given in writing; that the proceeds shall be applied to the indebtedness described in the mortgage; and that the mortgagee shall have the right: to seize or recover the wool, or the proceeds thereof, for the purpose of applying the same upon the indebtedness and other purposes of the mortgage. These provisions of the mortgage it was competent for the parties thereto to annul or modify by parol agreement subsequently made, and the rule invoked by the objection that the testimony offered varied the terms of the written mortgages
We conclude that the trial court erred in rejecting the testimony of the witness King, and in directing a verdict for the defendant. Therefore the judgment of the circuit court is reversed, and the cause is remanded to that court, with direction to award the defendant a venire facias de novo.
Dissenting Opinion
(dissenting). The record shows that the plaintiff in error offered to prove by Tom King that, at the time the arrangements were made for the extension of the loan and the execution of the second mortgage, he had an agreement with A. T. Atwater “that the wool should not be included in the second mortgage.” The assignment of error is that the court erred in refusing to permit the witness to testify to an agreement “that the wool already shorn and to be shorn from the sheep should not be included in the second mort-' gage.” The pleadings, the evidence, and the assignment of error seem to me to raise the plain question whether or not the negotiations preceding the execution of the second mortgage can be received in evidence to show that it should have been so written as to release certain property described in the first mortgage. It seems to me that this question should be answered in the negative, and that it would necessarily follow that the circuit court did not err in excluding the evidence. No principle of evidence is better settled than that, when persons put their contracts in writing, it is, in the absence of fraud, accident, or mistake, “conclusively presumed that the whole engagement and the extent and manner of their undertaking was reduced to writing.” Bast v. Bank, 101 U. S. 93, 25 L. Ed. 794, 9 Notes U. S. Rep. 915; Lanes v. Squyres, 45 Tex. 382. I think the judgment should be affirmed.