Opinion
No. 39065.
February 22, 1954.
1. Partnership — suit on conditional sales contract — evidence established partner liable thereon.
In suit by Finance Company to recover from defendant amount due on conditional sales contracts which had been assigned with recourse to Finance Company by automobile sales firm, evidence established that defendant was a partner in automobile sales firm, and as such, liable thereon.
2. Bills and notes — suit on dishonored check — evidence — burden of proof.
In such suit where one of the items on which Finance Company sought recovery was a dishonored check, which defendant's partner in automobile sales firm had drawn and given in payment for floor-planning of two automobiles, which automobiles were later repossessed and sold by Finance Company, and Finance Company was seeking in suit a deficiency judgment above what the cars sold, Finance Company failed to meet the burden imposed on it of proving amount, if any, still owed for debt represented by check.
3. Equity — bill of review — newly discovered evidence — not favored.
A bill of review is not favored in equity, especially on grounds of newly discovered evidence, and question of whether to grant bill of review is within the sound discretion of the trial court, and the granting of such relief should be cautiously exercised.
4. Equity — bill of review — cumulative evidence — impeachment of witness.
A bill of review for newly discovered evidence does not lie where new evidence alleged is merely cumulative or goes only to impeach an opposition witness.
5. Equity — petition for bill of review — properly denied.
Where petitioner had not requested any discovery during five months preceding trial, and petition for bill of review on grounds of newly discovered evidence, and fraud in procurement of decree by Finance Company in withholding information concerning certain contracts, did not have attached affidavits of petitioner and his attorney reflecting that they had employed due diligence in ascertaining facts of case prior to trial, and allegations of fraud were in general terms, trial court was within its discretion in finding that petitioner had not used due diligence, and in denying defendant's petition for bill of review.
Headnotes as approved by Ethridge, J.
APPEAL from the chancery court of Warren County; FRANK E. EVERETT, Chancellor.
John W. Prewitt, Vicksburg, for appellant.
I. The Chancellor erred in finding that appellant was owner, principal or joint venturer of the Mississippi Motor Company. Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Sample v. Romine, 193 Miss. 706, 8 So.2d 257; Black's Law Dictionary (4th ed.), p. 1259, word "owner."
II. The Chancellor's findings can be disturbed when there is error in the construction of written documents. Lamar v. Lane, 170 Miss. 260, 154 So. 709; Northern Assur. Co. v. J.J. Newman Lumber Co., 105 Miss. 688, 63 So. 209.
III. The Chancellor's findings are contrary to the overwhelming weight of the testimony and are manifestly erroneous. Ascher v. Moyse, 101 Miss. 51, 57 So. 299; Griffith's Miss. Chancery Practice, Sec. 674 p. 741.
IV. The petition to vacate judgment on grounds of fraud should not have been dismissed. Brown v. Wesson, 114 Miss. 232, 74 So. 831; Levengood v. Munns (Ind.), 27 N.E.2d 95; United States v. Metal Process Co. (Ohio), 57 F. Supp. 317; Williams v. Williams, 176 Miss. 251, 169 So. 27; 31 Am. Jur., Secs. 670, 673 pp. 239-40; Griffith's Miss. Chancery Practice, Secs. 643, 644 pp. 707, 708.
Young Daniel, Jackson; Teller Biedenharn, Vicksburg, for appellee.
I. The appellant was the owner, principal, or joint venturer in Mississippi Motor Company, and the Chancellor's finding of fact thereon.
A. Findings of fact by a Chancellor will not be disturbed unless they are contrary to the overwhelming weight of the evidence, and manifestly wrong. Lamar v. Lane, 170 Miss. 260, 154 So. 709; Northern Assur. Co. v. J.J. Newman Lumber Co., 105 Miss. 688, 63 So. 209; Griffith's Miss. Chancery Practice, Sec. 674.
B. The relation of principal and agent is established by substantial evidence. Allen v. T.J. Moss Tie Co., 157 Miss. 392, 128 So. 351; Chase Natl. Bank v. Chapman, 173 Miss. 333, 160 So. 286; Collins v. Crout (Miss.), 51 So.2d 278; Dyle v. Griffin, 122 Miss. 828, 85 So. 93; Fanning v. C.I.T. Corporation, 187 Miss. 45, 192 So. 41; McCloskey Bros. v. Hood Milling Co., 119 Miss. 92, 80 So. 492; Myers Construction Co. v. Batson, 156 Miss. 689, 126 So. 822.
C. The appellee having changed its position in reliance on the voluntary acts of the appellant, the latter is estopped to deny the existence of the relationship of principal and agent. Meridian Waterworks Co. v. Marks (Miss.), 17 So. 777; Tarver v. J.W. Sanders Cotton Mill, Inc., 187 Miss. 111, 192 So. 17; 2 Am. Jur., Agency, Sec. 104.
D. A joint venture between the appellant and Clarke is established by substantial evidence. Sample v. Romine, 193 Miss. 706, 8 So.2d 257.
E. Summary and response to appellant's brief on facts and relationship.
II. The Court was correct in dismissing the appellant's petition for bill of review for the reasons hereinafter stated.
A. A bill of review is not favored. Imbragulio v. Herbert, 171 Miss. 505, 158 So. 138; Griffith's Miss. Chancery Practice, Sec. 640.
B. A bill of review based upon newly discovered evidence can be filed only upon leave of the Court first had. Vaughn v. Cutrer, 49 Miss. 782; Williams v. Williams, 176 Miss. 251, 169 So. 27; Griffith's Miss. Chancery Practice, Sec. 636.
C. Newly discovered evidence which is cumulative, or which will serve only the purpose of impeachment, is not sufficient to support a bill of review. Foy v. Foy, 25 Miss. 212; Moore v. Chicago, St. L. N.O.R.R. Co., 59 Miss. 243; Redmond v. Marshall, 162 Miss. 359, 137 So. 733; Southard v. Russell, 16 How. 547, 14 L.Ed. 1052; Vanderburg v. Campbell, 64 Miss. 89, 8 So. 206; Griffith's Miss. Chancery Practice, Sec. 637.
D. Necessity for affidavit by Jack E. Ford and his attorney. Hilbun v. State, 167 Miss. 725, 148 So. 365; Griffith's Miss. Chancery Practice, Sec. 637.
E. Affidavits of witnesses were not furnished, as required by law. Gavigan v. State, 55 Miss. 533; Hare v. Sproul, 3 Miss. 772; Rulon v. Lintol, 3 Miss. 891; Tatum v. Tate, 77 Miss. 684, 27 So. 647; Williams v. Williams, supra; 19 Am. Jur., Sec. 440 p. 303; Griffith's Miss. Chancery Practice, Sec. 637.
F. Want of diligence. Day v. State, 91 Miss. 239, 44 So. 813; Williams v. Williams, supra; Griffith's Miss. Chancery Practice, Sec. 637.
G. The allegations of fraud are insufficient in law to justify the relief prayed for. Co-operative Oil Co. v. Greenwood Agency Co., 148 Miss. 536, 114 So. 397; Equitable Life Assur. Society of the U.S. v. Neil, 103 Miss. 186, 60 So. 133; Graham v. Lee, 204 Miss. 416, 37 So.2d 735; McInnis v. Wiscasset Mills, 78 Miss. 52, 28 So. 725; Otts Finance Co. v. Myers, 169 Miss. 407, 152 So. 834; Ramoneda Bros. v. Loggins (Miss.), 39 So. 1007; Griffith's Miss. Chancery Practice, Sec. 176.
(Hn 1) The principal question on this appeal is whether there is substantial evidence in the record to support the finding and decree of the Chancery Court of Warren County, that appellant Ford, defendant below, was during the times in question a partner of or joint venturer with E.G. Clarke in an unincorporated used car business in Vicksburg known as the Mississippi Motor Company; or conversely, whether on this rather lengthy record we should say that the trial court was manifestly wrong in that finding. If Ford was a partner or joint venturer with Clarke in Mississippi Motor Company, then he is liable on the conditional sales contracts which were assigned with recourse by Mississippi Motor Company to appellee-complainant, Commercial Securities Company, Inc.
The chancery court found that the appellant was liable on these instruments, and the record is ample to support that decision. A detailed narrative of the facts will serve no purpose. Ford in the early 1940's had operated a used car business in Vicksburg, known as Mississippi Motor Company. He stated that he terminated it around 1944. He and Clarke were close friends, and Clarke worked for Ford in the latter's Safeway Cab Company until Clarke left that business in 1951. A used car lot known as the Mississippi Motor Company was then opened by Clarke and, according to appellee's evidence, by Ford. The evidence warranted a finding that Ford furnished the financial backing for this venture. He prepared and gave to appellee a statement of his financial worth, and appellee's witnesses testified that appellee purchased the contracts in question on the strength of this statement and of Ford's participation in and ownership of the Mississippi Motor Company. Moreover, on October 6, 1951, in response to appellee's complaint to Ford that Clarke was signing most of the endorsements and assignments of Mississippi Motor Company contracts, Ford gave the following letter to appellee: "From this date forward till further notice by me, you are hereby authorized to accept the signatures of E.G. Clarke for sales-contracts floor planning of cars for the Miss. Motor Co., Vicksburg, Miss."
It is apparent that this authorization applied to both conditional sale contracts and to floor-plan or wholesale contracts.
Appellant admitted selling certain automobiles through the Mississippi Motor Company, although he claimed that they were personal sales and not connected with the company. He admitted signing the name "Mississippi Motor Company by Jack E. Ford" on contracts and notes negotiated to appellee, including conditional sale contracts. Appellant admitted that he was responsible for the floor-planning or wholesale financing for Mississippi Motor Company. His contention is that his liability was so limited, and did not extend to retail, conditional sale contracts. Appellant admitted that he signed a signature card for a bank opening a checking account in the name of Mississippi Motor Company, with both him and Clarke being authorized to draw against the account; and that both he and Clarke signed a form for the bank entitled "authority of partnership to open deposit account, and to procure loans." Appellant admitted that he endorsed several checks payable to Mississippi Motor Company, endorsing them in the name of the company by himself. Appellant paid off several obligations of Mississippi Motor Company. Bradshaw, manager of appellee's office in Jackson, testified that Ford told him on one occasion that the Mississippi Motor Company "was getting along pretty good, that recently he and Clarke split $5,000 out of the company." Lowry, assistant manager of appellee's Jackson office, testified that appellant told him that Clarke was the manager of appellant's used car business, and that appellant introduced Clarke to him by so stating. Clarke died prior to the filing of this suit.
The trial court was warranted in accepting this testimony and this uncontradicted documentary evidence, and in finding that Ford was either a partner of or joint venturer with Clarke in the Mississippi Motor Company. Under either status appellant would be liable on the conditional sale contracts, but since a joint venture relates to a single transaction of a limited nature, and a partnership relates to a joint and continuing business of a particular kind, we think that the record indicates that appellant and Clarke were partners in the Mississippi Motor Company. 40 Am. Jur., Partnership, Section 3.
(Hn 2) The total amount of the final decree for appellee against appellant was $17,747.37. One of the items which appellee claimed appellant owed was a check in the amount of $1,202.83, dated April 24, 1952, payable to appellee and signed by E.G. Clarke for a 1947 Ford and a 1946 Chevrolet, and for an obligation of Mississippi Motor Company. This check was returned to appellee marked "account closed", but prior to its dishonor appellee had surrendered to appellant the notes and contracts in question. Bradshaw testified that the check was given in payment for the floor-planning of the two cars. He admitted that appellee had repossessed these two cars and that they were sold by appellee. He stated that this suit was filed for the deficiency above what the cars were sold for; that these cars were sold along with others which appellee had replevied from Ford, and that applying the pro rata share received for these two cars, the amount of this check had not been paid by "a big majority." There is no testimony as to the amount of the deficiency, if any, owed on this check above the amount received by appellee for the sale of the two cars which it had repossessed. Hence it is undisputed that the two cars constituting collateral for the debt represented by this check were repossessed by the payee, appellee, and were later sold to liquidate the debt represented by the check. Appellee had the burden of showing the amount, if any, still owed for the debt represented by the check, and it failed to meet that burden of proof. Appellee in its brief in effect recognized the weakness of the proof on this issue and agreed, if the court should so decide, to a remittitur for the amount of the check, $1,202.83. The final decree of the trial court should be reduced in that amount, and a judgment entered here for the difference, $16,544.54. The decree of the trial court is affirmed as so modified.
About two and a half months after the final decree on January 21, 1953, appellant filed a "petition for bill of review." That petition charged that appellant had obtained newly discovered evidence which would show that the findings of the final decree on several of the conditional sale contracts were wrong, and that in fact appellee had been paid on some of these instruments. It further charged in general terms that appellee had fraudulently procured the decree by withholding information concerning these contracts. Hence the "petition for bill of review" asked that the court declare void its original decree and that the case be tried de novo. Appellee moved to strike the petition, and the trial court sustained that motion. We find no error in that action under the circumstances in this case. (Hn 3) A bill of review is not favored in equity, especially on the grounds of newly discovered evidence. It is within the sound discretion of the trial court, and the granting of such relief should be cautiously exercised. Griffith, Mississippi Chancery Practice, Section 640. (Hn 4) Much of the newly discovered evidence charged in the petition was cumulative in nature, and much of it was directed to impeaching the testimony of appellee's witnesses. It is established that a bill of review does not lie for those purposes, Griffith, Mississippi Chancery Practice, Section 637. (Hn 5) The petition did not have attached to it the affidavits of witnesses, nor the affidavits of appellant and his attorney reflecting that they had previously shown due diligence in ascertaining the facts of their case prior to the trial on the merits. The bill was filed in August 1952, and the trial was not held until January 1953, with a final decree on January 21. Moreover, in those nearly five months preceding the trial appellant did not ask for any discovery from appellee. We do not think that the trial court abused its discretion in finding in effect that appellant had not exercised due diligence. A somewhat analogous case is Williams v. Williams, 176 Miss. 251, 169 So. 27 (1936). As to the amount owed for floor-planning of cars, appellant and appellee agreed and stipulated prior to the final decree as to that amount, and the decree so adjudicated. The allegations of fraud were in general terms, and under the circumstances of this case are insufficient in law to justify the relief prayed for. Griffith, Mississippi Chancery Practice, Section 176.
Affirmed as modified.
All justices concur.
ON MOTION TO CORRECT JUDGMENT
May 10, 1954 64 Adv. S. 12 72 So.2d 201
Appellee, Commercial Securities Company, Inc., has filed a motion to correct the judgment herein in two respects. In the chancery court appellee obtained a decree against appellant for $17,747.37. On appeal we affirmed that decree subject to an agreed remittitur from that principal amount of $1,202.83, thus affirming the decree for appellee against appellant for $16,544.54. The first point of appellee's motion is that the court should make an equitable, pro rata assessment of costs against the appellant. The costs were assessed against appellee in our original judgment. Since the decree of the trial court was affirmed as to a substantial part of it, appellee's motion in this respect is sustained, and the costs are directed to be assessed equally against appellant and appellee.
Appellee's motion also requests that appellant be assessed with five per cent damages under Code of 1942, Section 1971. However, no statutory damages are allowable upon the reversal and entry of a modified judgment or decree. Damages are assessed only where there is an unconditional affirmance. And it has been said that the ordering of a remittitur is in practical effect a reversal. Howie v. Bonds, 87 Miss. 698, 40 So. 227 (1905); Courtney Brothers v. John Deere Plow Company, 122 Miss. 611, 84 So. 690 (1920); Vicksburg S. P. Railroad Co. v. Lawrence, 78 Miss. 86, 28 So. 826 (1900). Hence the motion to correct judgment is overruled in part, insofar as it is directed to an assessment of five per cent damages.
Motion to correct judgment sustained in part and overruled in part.
All justices concur.