| Miss. | Oct 15, 1916
delivered the opinion of the court.
This suit originated in the circuit court of Alcorn county, and is based upon the following facts:
The Corinth, Shiloh & Savannah Turnpike Company, the appellant, a Tennessee corporation having its office and place of business in Corinth, Miss., had built a turnpike road from the Tennessee line to Shiloh, on the Tennessee river. This road was constructed for the turnpike company by A. T. Newell Construction Company. The appellee, W. T. Gooch, is a merchant living in Tennessee. The Newell Construction Company owed appellee the sum of two hundred dollars and thirteen cents. This construction company advised appellee that appellant turnpike company owed it an amount exceeding this debt, and offered to give appellee a written order on the turnpike company for this amount. Before agreeing to this, appellee rang up "W. T. Bynum, who resided in Corinth, Miss., and asked Bynum whether or not the turnpike company would pay this written order. Bynum was the secretary and treasurer of appellant company, and was also cashier of the First National Bank of Corinth. According to the testimony of the appellee, Bynum advised appellee that the appellant company owed the Newell Construction Company about one thousand dollars, and that, as secretary and treasurer of the appellant company, he would pay this written order. The order was then given and was sent by appellee to Morrison-Rinehart Grocery Company, of Corinth, for collection. Bynum declined to pay it at that time, but requested Morrison, who presented the order, to return it to appellee and request appellee to get a check from Newell Construction Company instead; Bynum stating at that time that he would prefer to have a check. Appellee, also, after receiving the written order from Morrison, rang up By-num, who told him, in substance, what he had told Morrison. Appellee then returned the written order to the construction company and requested them to send him a
“Corinth, Miss., August 23,1913.
“Mr. W. T. Gooch, Michie, Tennessee — Dear Mr. Gooch: I have your letter in regard to Newell Bros, and beg to say that we have been doing all we could to get the matter settled up, but so far, we have been unable to collect what has been subscribed by several thousand dollars, and as you know the work cost several thousand more than we figured on it makes it doubly hard for the Turnpike Co. to take care of any additional expense. We will be glad to take up all outstanding matters as soon as possible, and trust we can sell the bonds so as to do so— Can’t you take a block of the bonds — the best security at all, and will increase in value all the while.
‘ ‘ Cordially,
“M. T. Bynum, Treas. C — S—T—Co.”
The above statement of facts presents the theory of the appellee as shown by his testimony. It is unnecessary to state the conflicting testimony introduced by the appellant. At the conclusion of the testimony introduced by the appellee (plaintiff in the court below), the appellant (defendant) made a motion to exclude the same, which •motion was overruled by the court. At the conclusion of all the testimony, the defendant asked fór a peremptory instruction, which was refused. The jury returned a verdict in favor of the plaintiff for the amount sued for, upon which judgment was duly entered, and from which judgment this appeal is prosecuted.
“Bills of Exchange Defined. — When any person or body politic shall, by order in writing, signed by such person or by a proper agent, direct the payment of a sum of money by any other person, the sum therein specified shall be due, by virtue thereof, to the person in whose favor the order is drawn, and may be put in suit against the drawer thereof, or against the drawee, if accepted, and the amount recovered, with interest and cost.”
Section 4012, Code of 1906, provides that the acceptance of a bill of exchange, in order to charge the acceptor, must be in writing. It read as follows:
“Acceptance of Bill Must be in Writing. — The acceptance of a bill of exchange must be in writng, duly signed, in order to charge the acceptor; and the holder may require the acceptance to be written on the bill, and a refusal so to do may be treated as a refusal to accept; but an unconditional promise, in writing, duly subscribed by the promiser or his agent,, to accept a bill before it is drawn, shall amount to an acceptance of it.’ ’
Therefore, if we treat this suit as one based upon this written order or bill of exchange, then the appellee cannot rcover, because the acceptance was not in writing. If we treat it as a suit based upon the cheek above set out, .then the appellant company was not the. drawee of that check, neither did it agree in writing to pay it. Consequently, this suit cannot be maintaned as one based upon the check.
It is contended, however, by the appellee, that the letter of Bynum to appellee was a written acknowledgment to pay this debt, and will take it out of the statute of frauds (see. 4775, Code of 1906). This letter in no wáy comes up to the requirements necessary in a case of that kind. It does not specifically mention this debt nor its date nor the amount thereof, nor is it an unconditional
There was never any novation in this case. The construction company was at no time released from its original liability to appellee. The mere fact that the turnpike company owed the construction company would not change the rule relating to the written acceptance of a bill of exchange. The contention that, if the drawee of a bill of exchange be the debtor of the drawer, then an oral acceptance would be binding, would abrogate and nullify section 4012 above quoted. Such is not the law.
The lower court erred in refusing the peremptory instruction requested by the appellant.
Reversed, and judgment here for appellant.