Carson v. Alexander

34 Miss. 528 | Miss. | 1857

HANDY, J.,

delivered the opinion of the court.

The errors relied upon consist in exceptions taken by the appellant to an account taken by a commissioner under the direction of the Chancery Court.

The first error complained of is the disallowance of the third exception taken to the account. By the account, the defendant is allowed the sum of $1500, on account of a bill of exchange drawn by Carson in favor of Alexander, on A. J. Wright & Co., of New Orleans, by whom it was accepted, dated 20th of February, 1853, and due in November, 1853. The objection is that this bill was not protested, and that it was not shown that demand of payment was made or notice of non-payment given; and, therefore, that Carson was not liable upon it.

It appears by the pleadings that when this bill was drawn Carson was doing business with Alexander as a commission merchant, shipping his cotton to him, and that Alexander had it sold by Wright & Co., in New Orleans, and received the proceeds, and that this bill was drawn for the purpose of placing Alexander in funds for advances which he had made for Carson. That the draft was negotiated by Alexander, but upon its maturity Carson failed to pay it, and Alexander took it up, and charged it against Carson in an account rendered him, and to which he made no objection.

I Under such circumstances, there was no necessity for protest or notice to Carson. The bill was drawn upon Alexander’s agent, and it was virtually the same as if drawn on himself, for it was through him that Carson was to furnish the means to pay it. But having failed to furnish the means, Alexander took it up and paid it himself to the holder, to whom it had been negotiated. If Wright & Co., being accommodation acceptors, had paid it on their own account, it is clear that there would have been no necessity for notice or protest; and Alexander had the right through them, as his agents, to take it up; and having done so, there was equally no necessity for notice or protest. But no injury could have arisen to Carson for want of notice, because he had failed to furnish the funds to pay the bill. And, moreover, it appears that the account containing a charge for the draft was sent to Carson, and that he made no objection to it.

The next objection applies to the allowance of eight per cent, interest on account of this bill. This, it is said, is erroneous, because the bill was payable in New Orleans, and that the legal rate of interest upon it is five per cent. But it appears that the bill was put in circulation, and was afterwards taken up by Alexander through his agents, the acceptors, and that the money was thus advanced upon the bill. He was, then, entitled to the interest allowed for money advanced, which is eight per cent., according to the course of trade ; and having received, his accounts with interest charged at that rate upon money ¿advanced, and without objection, and also received credit for interest at the same rate, he must be presumed to have agreed to pay interest at that rate in his dealings with Alexander.

The last objection insisted upon is, that the bill for $706 is without consideration, and is erroneously charged against the appellant. Taking the statements of the bill-as true, that would be correct. But the bill calls for discovery upon the point, and the answer shows that in the first place the appellant drew a bill for $611 97 upon Alexander, but failed to pay it, and that Alexander had to pay it; and he, therefore, charged it against Carson. He then drew another bill for $706 upon Alexander, which was ac- - cepted, and was afterwards negotiated by the appellant, and discounted for the sum of $642 46, which sum was paid to Alexander, but $100 of it was at that time loaned to the appellant, and he received credit for $542 46. When t-his bill matured, Carson failed to pay it, and Alexander was compelled to pay it. Alexander having thus paid both bills, it is manifest that he was entitled to charge the appellant with them, giving him credit for the sum received from him from the money raised by the discount of the second bill.

This state of facts appears i by,the answer, which being made upon the call for discovery upon the point in the bill, must be taken as evidence, and, not being disproved, as true.

Considering the exceptions insisted upon as not well taken, the decree overruling them was correct, and is affirmed.