OPINION.
Trammell:
The only issue raised by the pleadings in this case is whether the taxpayer, in computing its net income for the fiscal year ending May 31, 1918, should be allowed to deduct as a debt ascertained to be worthless and charged off within the taxable year $315,846.24, which it lost as a result of the transaction outlined above. At the hearing the taxpayer also raised the point that even if the contract of October 30, 1912, between the taxpayer and the R. B. MacLea Co., be held a contract of sale, the Commissioner erred in allocating the loss to the years 1913 to 1918, in the proportion that the amount of the sales in each year bore to the total sales. The Commissioner contended that the contract was a conveyance to taxpayer of the merchandise referred to therein in settlement of an account due, and that the loss of $315,846.24 was sustained over the period October 30, 1912, to May 31, 1918, from trading operations on merchandise purchased for sale, as well as on the merchandise acquired under the contract. The taxpayer contended and offered testimony to show that the written instrument executed on October 30, 1912, by it and the R. B. MacLea Co., was not, as it purports on its face to be, a sale of merchandise but is and was intended as a conveyance of merchandise to taxpayer merely as security for a debt, and that, the security having been extinguished in the year 1918, the debt became worthless and was properly charged off in that year.
Counsel for the Commissioner objected to the admission of this testimony on the ground that the instrument is free from any ambiguities and speaks for itself, and that its terms can not be varied or changed by parol evidence. We think the testimony is competent and admissible. Peugh v. Davis, 96 U. S. 332. The rule against varying or contradicting writings by parol evidence obtains only in suits between and is confined to parties to the writing and their privies and has no operation with respect to third persons nor eveupon the parties themselves in controversies with third persons. Sigua Iron Co. v. Greene, 88 Fed. 207; O'Shea v. New York, C. & St. L. R. Co., 105 Fed. 559; Mitchell v. McShane Lumber Co., 220 Fed. 878.
It is true, as claimed by counsel for taxpayer, that a written instrument on its face an absolute conveyance of title to property may be shown by parol evidence to be, in fact, merely a mortgage or security for a debt. However, the burden of establishing that the intention of the parties thereto was different from that which the instrument purports, is upon whoever alleges it, in this case the taxpayer, and must be established by clear and conclusive evidence. Ensign v. Ensign, 120 N. Y. 655; 24 N. E. 942. In that case it was stated by the court as follows:
The burden of establishing an oral defeasance to such a deed is an onerous one, resting on whoever alleges it, and its existence, and also its precise terms, must be established by clear and conclusive evidence; otherwise the strong presumption that the deed expresses the entire contract between the parties to it is not overcome. A conveyance of land in fee, so executed, acknowledged, and recorded, is of too great solemnity, and of too much importance, to be set aside, or converted into a mere security, upon loose or uncertain testimony; and it will not be, unless the existence of the alleged oral defeasance is established beyond a reasonable doubt.
We are not satisfied from the evidence in this case that the instrument executed by the taxpayer and the R. B. MacLea Co. was, as is now claimed, only intended to be a contract for the conveyance of certain property to taxpayer as a pledge or security for the payment of a debt. The evidence that there was a contemporaneous oral agreement which modified and changed the terms of the written instrument is not definite and unequivocal, and we would not be warranted in holding that it is sufficient to overcome the strong presumption that the written instrument expresses the entire contract between the parties. It appears from the testimony that, as to creditors of the MacLea Co., the written contract was to operate as an absolute conveyance of property, but that it was agreed by the parties orally that, if the property should subsequently be sold for more than the amount of the MacLea Co.'s debt to the taxpayer, plus selling charges, the taxpayer would pay the MacLea Co. the amount of such excess. In other words, as,between the-parties the agreement was to have the effect of a mortgage or pledge, but as to creditors it was to be considered a conveyance. If it was a conveyance in fact and truth, it was such for all purposes, but the evidence is that it was to be considered as such for the purposes of creditors only. If it were to be given that effect and considered by the parties as a conveyance for that purpose, it can not be held that it was something else for another purpose after the parties have obtained the benefit of it with respect to creditors.
Considering all the evidence in the light of the actions and conduct of the parties, we think that the contract was for the absolute conveyance of title to merchandise. The taxpayer took the merchandise in question and commingled it with other merchandise. It took no notes or other evidence to show that the MacLea Co. was indebted to it, and when the MacLea Co. liquidated and went out of business a few years later the taxpayer did not assert or attempt to assert any claim as a creditor. It took no interest in the liquidation of that, corporation. If the indebtedness had not been paid by the conveyance of the merchandise as the contract provided, Converse & Co. was still a creditor.' Having security for a debt does not change the relationship of debtor and creditor, yet the taxpayer had no evidence of indebtedness against the MacLea Co. subsequent to the date of the written instrument referred to and neither received nor charged any interest. There is no evidence that the goods received from the MacLea Co. were its entire assets or that the corporation was insolvent, nor is there any evidence that the indebtedness would not have been paid in full if a claim had been filed when that company was liquidated. If that company had been insolvent, the agreement which the parties contended to be a conveyance as to creditors and a mortgage or pledge as to themselves would doubtless have been held to have been merely a scheme to hinder and delay creditors. The fact that the taxpayer did not present a claim when the MacLea Co. was liquidated is evidence that it had no claim against it at that time. This is in accordance with the specific language of the written instrument herein quoted, which provides that all obligations against the MacLea Co. were canceled and released.
There appeared nothing to distinguish the goods purchased by the taxpayer from the MacLea goods. When goods were sold there were no means of separating pledged goods, if they were pledged, from goods owned. While it was testified that Converse & Co. treated the agreement as a pledge or security as between the parties, it is to be observed that it already had a lien on such goods which as between the parties was effectual. Its only object in securing the possession thereof as a pledge was for protection as against creditors; yet, as to creditors, the contract was considered what it purported to be, a contract for sale of goods, and as between the parties it was to remain as a pledge.
The possession of chattels creates a presumption of ownership which is sufficient until overcome by proof. 10 R. C. L. 827. The commingling of the MacLea goods with goods purchased by the taxpayer so that they became indistinguishable and inseparable creates another presumption that the taxpayer acquired the ownership thereof in accordance with the terms of the agreement.
The evidence is that the MacLea merchandise when received by the taxpayer exceeded in value the amount of the indebtedness. There is no evidence as to any extension of time for the payment of the indebtedness if the merchandise were taken as security. The debt was already past due, and the taxpayer admittedly had the right to sell the goods at any time, whether they were given as security or in payment of the debt; yet as goods were sold the taxpayer acquired other goods to keep up the line and to replace colors sold, and continued to sell and buy goods over the period of approximately six years. In acquiring other goods the taxpayer expended $696,487.96. These facts would indicate that the taxpayer acquired the title to the MacLea merchandise and engaged in trading operations.
The amount of the deduction claimed as a debt ascertained to be worthless was arrived at by subtracting from the total cost of merchandise, which amounted to approximately $1,111,000, of which amount approximately $385,000 was the merchandise received from the MacLea Co., the total sales amounting to $799,877.90. The entire amount of the loss incurred in buying and selling merchandise over the period from 1912 to 1918 was attributed to the debt due by the MacLea Co. on the theory that it was necessary to acquire the other goods and to extend the sales transactions over that period in order to collect the amount of the indebtedness due from the MacLea Co. It is clear, however, that the entire amount of the losses incurred over this period was not a debt due by the MacLea Co. which was ascertained to be worthless.
The MacLea Co. did not owe anything in excess of $885,561.46. The expenditures made and losses incurred in carrying on trading operations on other goods greatly exceeded the MacLea indebtedness and should not be added to its account, if any indebtedness in fact existed after the receipt by the taxpayer of the MacLea merchandise.
It follows from what lias been said that the loss of $315,846.24 sustained by the taxpayer was not on a debt ascertained to be worthless and charged ofF in the taxable year ended May 31, 1918, but was a loss incurred in trade or business over the entire period from October 30, 1912, to May 31, 1918, inclusive. The taxpayer was, therefore, not entitled to deduct that amount in computing its net income for the fiscal year ended May 31, 1918.
With respect to the second issue raised by the taxpayer, we conclude that the action of the Commissioner should be approved. The taxpayer kept no inventories of the merchandise acquired from the B. B. MacLea Co., or of the other merchandise purchased and sold in connection therewith. It is, therefore, impossible to determine accurately the actual loss in any one year, and, under the circumstances, we are of the opinion that there is no fairer or more equitable solution of the problem, both to the taxpayer and the Government, than to allocate the loss to the several taxable years, included in the period October 30, 1912, to May 31, 1918, in the proportion that the amount of sales in each year bore to the whole amount of sales. That is what the Commissioner has done.