Millsaps v. Merchants' & Planters' Bank

Citations

• 71 Miss. 361

Syllabus

<p>1. Sale. Corporate stock. Warranty as to debts. Evidence. Admission.</p> <p>In an action on a note given to the sole owner of stock of certain corporations for the purchase of an interest therein, where the seller had warranted that their aggregate liabilities did not exceed a fixed sum, on the inquiry whether certain debts were corporate or individual debts, an unsigned memorandum of the corporate liabilities, furnished by the seller as a basis for the negotiation, is admissible in evidence, as tending to show an admission by the seller that the debts listed therein were corporate debts.</p> <p>2. Same. Contract of sale. Construction. Intention of parties.</p> <p>Although certain debts listed in the memorandum, and outstanding when the sale was completed, contracted for the benefit of the corporations, were not legally binding on them, they should be treated, as between purchaser and seller, as corporate liabilities within the contemplation of the contract, and should be considered in determining whether such liabilities exceeded the amount warranted.</p> <p>3. Sam. Character of debt. Who may question.</p> <p>And so a debt not in said list, created in the name of one of the corporations by such sole owner of the stock, and outstanding at the time of the sale, should be treated as a corporate debt within the meaning of said contract, notwithstanding the consideration was received by such sole owner individually. No one not a creditor of the corporation could complain.</p> <p>4. Evidence. Parol to vary writing. Consideration.</p> <p>Although said memorandum was given pending negotiations which were merged in a written contract to sell, it is not subject to the rule excluding contemporaneous parol evidence to vary a written contract, since it only attacks the consideration — that is, the margin of value between the total worth of the corporations and their aggregated liabilities, the real subject of the sale. Cocke v. Blackburn, 57 Miss., 689.</p> <p>•5. Contract.