Opinion
No. 36428.
April 21, 1947. Suggestion of Error Overruled May 19, 1947.
1. LANDLORD AND TENANT.
Provision in written lease to city of Negro Y.W.C.A. building that all equipment placed in building belonged to city and might be removed on termination of lease was not modified by statement of mayor in public address that upon termination of lease city would permit the property to remain in building and become the property of Negro Y.W.C.A., in absence of new and additional consideration for such modification moving from lessor to city.
2. LANDLORD AND TENANT.
Under provision in written lease to city of Negro Y.W.C.A. building that all equipment placed in building belonged to city and might be removed on termination of lease, city was entitled to remove such equipment upon termination of lease without showing that it had any actual or immediate need for equipment.
APPEAL from chancery court of Hinds county. HON. V.J. STRICKER, Chancellor.
Howie, Howie McGowan and H.C. Stringer, all of Jackson, for appellants.
This is an appeal from the Chancery Court of the first judicial district of Hinds County, Mississippi, awarding certain personal property located in a Negro Y.W.C.A. to the City of Jackson. The City of Jackson filed a bill of complaint in the chancery court which was, in effect, nothing more than an affidavit for a writ of replevin. The suit was against S.D. Redmond and certain other negro residents of Hinds county and the Negro Y.W.C.A., and one certain A.L. Holland. Demurrer was filed to the bill of complaint and upon hearing thereof was by the court overruled. Thereupon the answer was filed and upon a trial on the merits, judgment was entered by the chancellor for the City of Jackson. A cross-bill was filed with the defendant's answer.
During the course of the late World War, and during the year 1943, the United States Government, acting through its own agencies and through the agencies of certain local organizations, expended large sums of money to provide for various types of welfare for its soldiers, sailors and marines in the armed services. There was located in the City of Jackson a building belonging to the Negro Y.W.C.A. In order to accommodate traveling soldiers and sailors who were necessarily passing through the city in connection with military movements certain facilities had to be provided. A certain amount of money (government funds) was allowed for this purpose by the War Council Community War Fund, Inc., an agency of the United States Government. The details were actually handled by the Jackson Defense Association which consisted of public spirited local citizens who were formed into an organization for the purpose of effecting these ends. The local Defense Council, above mentioned, had a board of directors, an executive committee and an advisory council. The City of Jackson acted as a mere intermediary between the United States Government and the War Council Community War Fund, Inc. With these funds they procured a certain building owned by the Negro Y.W.C.A. and out of these funds paid the rentals on this building. The City of Jackson entered into a lease agreement with the said Negro Y.W.C.A., which lease agreement was made an exhibit to their bill of complaint. The building was referred to in the contract as a recreational building for war workers. The last paragraph of the said lease agreement attempts to adjudicate that the City of Jackson was the owner of the property but all of the evidence clearly shows that it was not. A list of all of the articles and materials purchased with government funds and placed in the recreation building was offered. Most of these articles consisted of sheets, pillow cases, draperies, beds, chairs, tables, desks, cooking utensils and things of like expendable nature. This contract was entered into by the Negro Y.W.C.A. and the City of Jackson on the 12th day of April, 1943. The property remained at the said recreation center all during the war and some time about the 6th day of May, 1946, or more than three years later, the new administration, now occupying the City Hall, decided that they would recover or take back into their possession all of the said sheets, pillow cases, tables, chairs and furniture that the Federal Government had bought with its money and given to the negroes for the use of the soldiers and sailors of the negro race during the war and they brought their suit in the chancery court for said purposes. The chancery court entered the decree, adjudicating that the City of Jackson was the owner of all of the property, including the sheets, pillow cases, towels, draperies, cups and saucers, knives and forks, etc. On September 20th, the court issued another order upon motion, wherein the court took under advisement the City of Jackson's motion to change the order and award the property to the City of Jackson immediately. No further order has been entered on this motion.
The demurrer of the defendants should have been sustained. This is purely a possessory action and amounts to no more than this. It is true that under Section 147 of the Constitution of 1890 the court will not reverse on the grounds of jurisdiction alone, or the wrongful assumption of the right to hear and dispose of the cause. However, the court should not tolerate such a gross abuse of the jurisdiction of the chancery court as to permit possessory action for personal property, which should be brought in a law court, to be brought and maintained therein. We respectfully submit that the charge, in this demurrer, that there is no equity on the face of the bill, goes to the very heart of the case and in the exercise of the broad powers incident to the chancery court's jurisdiction, would have been sufficient to finally and for all times settle the case upon its threshold.
The court erred in awarding the property to the City of Jackson, Mississippi. There is not the slightest hint of evidence that the property involved ever belonged to the City of Jackson or that the money expended therefor ever belonged to the City of Jackson. All of the funds used were made available by virtue of the United States Government. Since the City of Jackson had no title to the property, they had no right to its possession and we again state that this is purely a possessory action, or, in other words, it is a replevin proceeding in the chancery court.
The City of Jackson waived any right to the possession of the property. Ex-mayor Walter A. Scott was the mayor of the city at that time and he testified that the property was given to the Negro Y.W.C.A. with the understanding that they were to keep the same. It is to be presumed that he meant they were to keep them so far as the rights of the City of Jackson were concerned, that is, any possessory rights that the City of Jackson might have and exert. It is true that the agreement whereby the city waived and gave up any right to the possession of the property is not contained in the contract. However, under the well established rules of law the Negro Y.W.C.A. was not barred from offering evidence of the changes in the said contract by parol. This is true because the said changes were made, not antecedent to the making of the contract, but they were made subsequent to the making of the contract, and for a valuable consideration.
There is a well established rule in this State that antecedent agreements are always merged in a contract.
McInnis v. Manning, 131 Miss. 119, 95 So. 250; Dowling v. Smyley, 150 Miss. 272, 116 So. 294.
It is equally well established that subsequent agreements, when for a valuable consideration, may be merged into and become a part of the previously written contract.
McDonnell Construction Co. v. Delta Pine Land Co. et al., 163 Miss. 646, 141 So. 757; Pritchard v. Hall, 175 Miss. 588, 167 So. 629; Edrington v. Stephens, 148 Miss. 583, 114 So. 387; 24 R.C.L. 154; 55 C.J. 671, Sec. 680.
Mayor Scott, both on his direct examination and on his cross-examination by the appellee's counsel stated time and again that so far as the City of Jackson was concerned, they were giving up to the negroes any rights that they had in the property. The Constitution's provision that the State cannot donate property, we submit, does not apply to the municipal proclamation disclaiming a right to the possession of personal property. It must be kept in mind always that the City of Jackson did not own this property. They never had any kind of title to it. While public policy would forbid the giving away of property belonging to the City, we know of no principal of law that would prevent the city from disclaiming the right to possession of the property which they did not actually own. Especially is this true, in cases of this kind, where the city is acting merely as an agency for the doing of war work of a charitable nature.
Harold Cox, of Jackson, for appellee.
The City of Jackson is the owner of the property in suit and the trial court committed no error in so decreeing.
Brister v. Leflore County, 156 Miss. 240, 125 So. 816; City Council of Greenville v. White, 194 Miss. 145, 11 So.2d 816; Adams v. Jackson Electric Ry., Light Power Co., 78 Miss. 887, 30 So. 58; Jackson Electric Ry., Light Power Co. v. Adams, 79 Miss. 408, 30 So. 694; Meyerkort v. Warrington (Miss.), 19 So.2d 433; Shell Petroleum Corp. v. Yandell, 172 Miss. 55, 158 So. 787; Simpson v. Ricketts, 185 Miss. 280, 186 So. 318; Wilson v. Peacock, 111 Miss. 116, 71 So. 296; Kidder v. McClanahan, 126 Miss. 179, 88 So. 508; Lee County v. James, 178 Miss. 554, 174 So. 76; Code of 1930, Secs. 380, 3347; Constitution of 1890, Secs. 100, 183; 43 C.J. 1345, Sec. 2104.
The chancery court of Hinds County had full jurisdiction of the subject matter of this suit and its decree thereon is final.
Pitts v. Carothers, 152 Miss. 694, 120 So. 830; Simpson v. Ricketts, supra; Constitution of 1890, Sec. 147.
The trial court should have awarded appellee the possession of the property with its costs in this case.
Sledge v. Obenchain, 59 Miss. 616; Weiss v. Louisville, N.O. T.R. Co. (Miss.), 7 So. 390; Code of 1930, Sec. 672; 37 Am. Jur. 704, Sec. 93.
The personal property here involved is in the Negro Y.W.C.A. building which was leased by the City on April 12, 1943, and whatever question might have been raised as to the ownership of the personal property, that question was foreclosed, so far as the parties to this suit are concerned, by the concluding clause written in the lease that "It is further agreed that all equipment placed in said building belongs to the party of the second part (the City of Jackson) and may be removed on termination of the lease," unless, as contended by appellant, the lease contract was subsequently modified as regards that ownership, and the incidents thereof.
The proof shows that subsequent to the lease, the Mayor of the City, then but not now in office, made a public address to about two hundred colored citizens interested in the Negro Y.W.C.A., and therein stated that upon termination of the lease — and it had been terminated before this suit was brought — the City would permit the property to remain in the Negro Y.W.C.A. building and to become then the property of that organization.
We will pretermit the questions whether the City could donate property belonging to it; whether, if so, a written order or resolution by the City Commissioners was necessary — and there was none — and whether a written conveyance was necessary under the statute of frauds, but will proceed to appellants' contention that the statement by the then Mayor constituted an oral modification of the written contract. If we conceded for the purpose of this case, and for that purpose only, that such a modification was made, it was necessary to the validity of the modification that it be supported by a new and additional consideration, Pritchard v. Hall, 175 Miss. 588, 167 So. 629, and to use the language of a sentence found in that case, we have searched in vain for the new or additional consideration moving from appellants to the City. There is nothing to show that the City obtained any advantage beyond what it already had, or that appellants suffered any detriment not already suffered, of any substantial character whatsoever. Thus, in legal effect, the contract stood as it has been originally written.
The chancellor correctly held that the property in controversy belongs to the City, but declined to decree its possession until the City should show that it had some actual and immediate need for it. We think that as between the parties to this suit, this was a question for the City to decide as to when it wanted the property, and as to what it was going to do it. The City held a written contract that it could remove the property on the termination of the lease, and the lease having been terminated, the right to remove had become fixed in the City, and the chancellor should have adjudged accordingly. The cross-appeal of the City will be sustained and the decree so far, but so far only, as it denied immediate recovery will be reversed and a proper decree for the City will be entered here.
Affirmed in part, reversed in part, and modified decree here.