77 Tenn. 104 | Tenn. | 1882
delivered the opinion of the court.
The plaintiffs, The Phoenix Insurance Company of Memphis, agreed to loan A. J. Vaughn & Co., also of Memphis, $1500, but required security. Stewart, Gynne & Co., the defendants, of the same city, were warehouse-men, and had in store cotton belonging to A. J. Vaughn & Co.
The proof indicates that a conference was had between the secretary of the Insurance Company and a
Memphis, June 14, 1878.
Received of A. J. Yaughn & Co., at the warehouse of Stewart, Gwynne & Co., in good order, the following cotton: ,
Marks. I No. Bales. ' I Consignee.
Various. [ 40. | Forty b.c.
Guaranteed valuation, fifteen hundred dollars, deliverable only on return of this receipt endorsed by the secretary of the Phoenix Insurance Company.
(Signed.) ‘ Stewabt, Gwynne & Co.
At the maturity of the note, a yellow fever epidemic was prevailing in the city of Memphis, of which the secretary of the Insurance Company died, and business was 'Suspended. The note was, on the 18th of November, 1878, renewed, at that time, Gwynne, a member of the firm of Stewart, Gwynne & Co., (who was also director of the Insurance Company), offered to deposit a new warehouse receipt, but the offer was declined, the Company preferring to retain the old receipt, which is specifically set out as a collateral in the renewal note.
Before the maturity of the new note, to-wit, some time in December, 1878, Gwynne called on the secretary of the Company and told him that A. J. Vaughn
The secretary of the Company then enquiring of Gwynne if the cotton then in his warehouse was the same cotton they had on hand when the receipt of the 14th of June was given, and he replied that it was not, or that he did not know that they had any of the same cotton on hand. The secretary then informed Gwynne that the Company would have nothing to do with any other cotton, or the defense of the replevin suit.
At the maturity of the renewal note the secretary of the Company called on defendants for the cotton specified in the receipt or its guaranteed value, and offered to endorse and deliver up the receipt according to its terms. The defendants replied they did not have the cotton, and declined to pay its value.
Gwynne testified that at the date of the warehouse receipt, 14th of June, 1878, bis firm had in their warehouse about 115 bales of cotton for A. J. Vaughn & Co., nearly all of which was on hand at the maturity of the first note, but admits, substantially, that they had none of this cotton on hand at the time he called on plaintiffs to take away foity bales. He says further, that more than forty bales were replevied from his firm by the producers. It is not very clear, from his testimony, whether at the time the cotton, was
The cause was tried without a jury, and judgment rendered for the plaintiffs for $1500, the guaranteed value of the cotton. The principal assignment of error relied upon, is the action of the judge in rejecting certain testimony offered by the defendants; that is to-say, they offered to prove that it was agreed between all parties, plaintiffs, A. J. Vaughn & Co., and defendants, at the time of giving the warehouse receipt, that defendants could hold said forty bales of 'cotton, then at their warehouse, or any other forty bales that might afterwards come in; so they retained on hand as much as forty bales worth $1500, and this, for the .purpose of giving to A. ,J. Vaughn & Co., the privilege of continuing to sell their cotton. That this was the reason the cotton was not more particularly described in the receipt. The proposition was stated in various forms to the court, but upon objection, the proposed testimony was excluded.
The action of the judge was based upon the familiar rule that parol evidence of previous, or cotempo-raneous conversations between the parties, is not admissible, to vary the terms of a written contract. The question is whether the proposed testimony was admissible under any of the various exceptions to this general rule.
But a paper may be in the form of a receipt and yet be in substance a contract, that is, it may contain an agreement to do, or not to do some particular thing in the future. If in substance a contract, the same rule should apply that applies to other contracts.
We need not enquire what would be the rule as to a warehouse receipt between the original parties. That is to say, in this case between the defendants and A. J. Vaughn & Co. It may be conceded, that as between .them, the receipts might be. explained or contradicted, so as to show that no such cotton had been delivered or received; at least this may be conceded for the argument. In view, however, of the importance attaching to papers of this character, and the great extent to which they are used as collaterals in commercial transactions, a different rule, at least, has been applied, where they came to the hands of innocent parties.
By custom such receipts have come to be considered as representatives of the property, and an assignment equivalent to a delivery of the property to the as-signee, and the warehouse-man is estopped as against
The plaintiffs in this case stand in the attitude of an assignee of the receipt in good faith, for money then advanced, without notice of any infirmity. Although upon its face the receipt shows that the cotton was to be delivered upon the return of the receipt endorsed by the secretary of the Insurance Company, and although
Second. It is insisted that conceding the writing to be a contract, yet there was a latent ambiguity arising from, the proof, which, according to the familiar rule, may be removed by parol testimony. That is to say, it appears that at the time the receipt was given, the defendants had on hand 115 bales of cotton belonging to A. J. Vaughn & Co., and the receipt does not designate- or distinguish any particular forty bales out of the 115 bales, and therefore parol proof must be admitted to designate the cotton actually embraced in the receipt. The transfer of the warehouse receipt had the effect of an actual delivery of the cotton to the assignee, to be held as a pledge, and therefore the identical cotton should be designated, and .it appearing that defendants had a large number of bales on hand, and the receipt not distinguishing the forty mentioned from the others, parol proof would have been admissible for this purpose, that is, to designate the bales actually embraced in the receipt. But it does not follow that parol proof is therefore admissible for all purposes. In other words, the ambiguity or uncer
Again, it is insisted that the proposed testimony should have been heard because it amounted to proof of an independant collateral agreement. The case of Leinau v. Smart, 11 Hum., 308, may be given as an illustration of this rule. There was in that ease a sale and conveyance of a “tavern house” and lot, and at the same time an independant collateral parol agreement that the vendor would close up another tavern he owned in the same town. The action was for a breach of this latter contract, and the recovery was held proper. Proof of this collateral agreement, it was held, in no sense varied or contradicted the written contract.
And so also where the writing embraces only part of the contract, as where there was a written contract for the hire of a horse for six weeks at two guineas, parol proof was admitted that the hirer was responsi
Ellis v. Hamilton, 4 Sneed, 512, was an action upon a note or bill for the payment of a given sum on a particular day. The defense of the surety was, that at the time the note was given there was a further agreement, in substance, that the payee of the note was to receive payments in a different mode, and that the obligation of the surety was not absolute. The defense was held inadmissible, as this was to contradict the written contract.
~We have only to apply these principles to the pres
Hor is it a case where only part of the contract was reduced to writing. As we have seen in such cases, there is to be no conflict between the parol contract and the writing. They stand together, and are consistent. The only difference is, the writing does not embrace it all. In our opinion, the parol proof in
The practical difference is, that if defendants are allowed to change the contract according to the parol j>roof offered by them, they claim that the cotton last on hand was taken by a superior title to A. J. "Yaughn & Co., and as warehousemen are not warrantors of the title, they are excused.
It is finally insisted, that the obligation of the defendants was in the nature of a guaranty, and that they were entitled to notice, but we think it clear that no notice was necessary.
Upon the whole,, we think there is no error in -the record, and the judgment will be affirmed.