Brandt Mercantile Co. v. Lang

56 So. 447 | Miss. | 1911

Anderson, J.,

delivered the opinion of the court.

The action of the court below in allowing the summons to be amended is assigned as error. This amendment was authorized by section 3938, Code of 1906, which is as follows: “If any matter required to be inserted in or indorsed on any process be omitted, such process shall not on that account be void, but it may be set aside as irregular, or amended on such terms as the court shall deem proper; and the amendment may be made upon an application to set aside or quash the writ.” Maxey v. Strong, 53 Miss. 280; 1 Ency. Pl. and Pr., 661.

It is argued that no interest in or title to the draft in question was shown to be in the Metropolitan Bank. The delivery of the draft by the Home Bank to the attorneys of the Metropolitan Bank for collection, with anthority to apply the proceeds, when collected, to the debt due the Metropolitan Bank by the Home Bank, operated as a transfer by the latter to the former of the equitable title to the draft, ■ entitling it to sue in the name of the holder of the legal title, to wit, J. H. Lang, assignee, etc., for the use of the Metropolitan Bank, which was done.

The burden of establishing appellant’s liability on the draft in question was on the appellee. There is an entire absence of evidence in this record showing such liability. It is true that it is shown that the draft was found among the assets of the bank, indorsed by the appellant, when the assignee took charge. Conceding it be true as contended that the Home Bank paid, or credited appellant’s account with, the amount of this draft when received by it, it does not necessarily follow that appellant is indebted to the Home Bank for the amount of the draft, for appellant only became secondarily liable by its indorsement. There is no showing whatever that at the time of the suit appellant had become liable on its indorsement.

It is argued that the fact the same person was president of appellant company and also of the Home Bank is a reason for holding the former liable to, the latter on this draft. We are unable to see why. They are two separate corporations, their business being distinct and independent. It is also contended that appellant, after the Home Bank went into the hands of the assignee, promised to pay the draft, and this is sufficient to show liability. If appellant did not owe the draft, how could the promise to pay it create liability? There was no' consideration for the promise.

It follows, from these views, that the court below erred in directing a verdict for the appellee.

Reversed and remanded.