McClintock v. Skinner & Co.

Hart, J. (after stating the facts). It is insisted by counsel for the plaintiff that there is no evidence legally •sufficient to support the verdict. .Defendants furnished supplies to plaintiff in the sum of $164.83 and she paid them in cotton in the sum of $200.89. (1) The evidence shows that the mules were very small and also very old and that they were not worth more than the $77.00, the balance claimed to be due them by Mrs. McClintock including the $113.28. So it will be seen that the contention of the plaintiff that the evidence is not legally sufficient to warrant the verdict depends upon whether or not she is liable for the debt which her husband owed Skinner & Company at the date of his death. She testified that she did not assume this debt and that nothing was_ said to her about it at the time she executed the mortgage to Skinner & Company. On the other hand they testified that she specifically agreed to assume this debt of her husband and that it constituted a part of the $200.00 for which she gave her note and which was secured by-the mortgage, she executed on the two mules and on her crop, but counsel for plaintiff contend that the court erroneously admitted this testimony over his objections. He insists that it is in violation of the rule which prohibits a party from contradicting the terms of a written contract by parol evidence. We do not .agree with counsel in this contention. This court has held that although the recitals and considerations in a deed or mortgage cannot be contradicted by parol evidence for the purpose of defeating the conveyance, it is competent to prove by such evidence that the consideration has not been paid as recited, or to establish the fact that other considerations not recited in the deed were agreed to be paid; when'it does not contradict the terms of-the writing. That parol evidence to establish the fact that Mrs. McClintock agreed to assume’ and pay off the mortgage indebtedness of her husband as a part of the consideration for the mortgage which she executed to Skinner & Company was competent, see the following cases: J. H. McGill Lumber Co. v. Lane-White Lumber Co., 90 Ark. 426; Felker v. Rice, 110 Ark. 70, and Livingston v. Pugsley, 124 Ark. 432. (2-3) It will be remembered that the mules in question were purchased by W. I. McClintock in 1905, and that he and the plaintiff were married in September, 1906. After they were married, W. I. McClintock several times mortgaged the mules in question to Skinner & Company for supplies. Mts. McClintock objected to the introduction of these mortgages in evidence and now assigns as error, calling for a reversal of the judgment the action of the court in admitting them. We think they were competent as tending to show that the mules belonged to her husband. It is well settled that where' a married woman permits her husband to hold her chattels out as his own, she will be estopped as against his creditors to claim them as hers. Roberts v. Bodman-Pettit Lumber Co., 84 Ark. 227; Mitchell v. State, 86 Ark. 486; Latham v. First National-Bank of Fort Smith, 92 Ark. 315. During the time they lived together as husband and wife the husband mortgaged these mules for supplies and his wife knew where he was trading. At the time of her husband’s death he owed Skinner & Company $113.28 and this amount was secured by a mortgage on these mules. According to the testimony of the defendants, Mrs. McClintock knew of this fact and agreed to assume and pay off this indebtedness. The testimony was competent as tending to show that the mules belonged to her husband and the release of their mortgage on the mules would furnish a consideration for her assuming her husband’s debts. Counsel for plaintiff also assigns as error the action of the court in permitting a witness to testify that the plaintiff once told him that she did not want any law suit, but that her attorney urged her to go on with it and that she was going to do so because it did not cost her anything. If it be conceded that the evidence should not have been permitted to go before the jury, we cannot see how it prejudiced the rights of the plaintiff. It merely showed that she did not want to have a law suit 'but felt compelled to go on with it to protect her rights. Counsel also urges a reversal of the judgment on account of certain instructions given by the court. We need not set out these instructions; for their correctness depends upon whether or not the court was right in admitting the testimony above referred to. Having held that the court correctly admitted the testimony, the instructions based on such evidence are correct. We think that the respective theories of the parties to this lawsuit were ,fully and fairly submitted to the jury in the instructions given by the court and the judgment will be affirmed.