86 So. 359 | Miss. | 1920
delivered the opinion of the court.
The appellant sued the appellee on five promissory notes bearing date September 14, 1917, due and payable as folio ays : One for two hundred dollars, due four months from date; one for two hundred and tAventy-five dollars, due five months from date; one for tAvo hundred dollars, due six months from date; one for two hundred dollars, due seven months from date; and one for two hundred dollars, due eight months from date. The first note reads as folIoays :
“$200. P. O., Indianola; State, Mississippi.
“Date, Sept. 14 — 17.
“Four months after date for value received we promise to pay to the order of Partin Manufacturing Company, Incorporated, two hundred dollars ($200) at Indianola Bank.
“Hough Drug Co., by John Hough.”
The other notes Avere identical in form and language, except that they Avere for 5, 6, 7, and 8 months, respectively, and in the case of the note due five months from date, the amount of the note was for two hundred and twenty-five dollars; the other notes all being for two hundred dollars each. Each of the said notes were indorsed as follows: ■
“Partin Manufacturing Co. Inc. C. H. Partin, Manager. Pay to the order1 of Foreman Bros. Banking Co.'Chicago, 111. Despres, Bridges & Noel. Pay to the order' of Any Bank or Banker, Foreman Bros. Banking Co." 2-27 Chicago, 111. 2-27. John Terborcli, Cashier.”
The defendant pleaded the general issue and two special pleas. By the first special plea it is alleged that plaintiff ought not to maintain its action because the debt sued
The second plea alleges that the notes sued on were exer cuted to represent installments under a certain contract, and that under the terms of the said contract the Partin Manufacturing Company was to do and perform certain things therein stipulated, and that at the time of the execution of the contract it .was the intent and purpose of the said Partin Manufacturing Company not to comply with any part of such contract, and that it had not performed the things, or any of them, specified in the contract; that the defendant was induced to sign said con
At the time of. the execution of the notes here in suit, the contract, made Exhibit A to the second special plea, AAras entered into, under which the defendant placed an order with the Partin Manufacturing Company for: First, .an automobile; second, a Grand Phonola talking machine; third, a ladies’ bracelet watch; fourth, a ladies’ lavaliere and chain; fifth, a ladies’ locket and chain; sixth, one forty-two-piece hand-decorated dinner set; also certain advertising matter; the things so ordered to be used as. prizes to purchasers from the defendant, under an understanding that the Partin Manufacturing Company would increase the defendant’s sales and collections not less, than tAvelve thousand, five hundred dollars in .twelve months, under Avliich agreement the Partin Manufacturing Company was to refund ten cents on every dollar the defendant fell short of the twelve thousand, five hundred dollars increase, and agreed to send' its bond, indorsed by a bonding company to the purchaser in the sum of one thousand, two hundred and fifty dollars to guarantee this agreement. The special pleas were replied to, and the case proceeded to trial.
The defendant offered the evidence of an inspector of the Post Office Department, who was directed by the Post Office Department to investigate the Partin Manufacturing Company’s method of doing business, and this agent testified that he made such an examination, and, among others, notified the plaintiff by letter, in the early part of 1917, that he was making such investigation, and requested information from them, and that he had a reply acknowledging his letter. He did not have the files containing this correspondence, and declined to produce them
Memphis, Tenn., March. 23, 1918.
“Despres, Bridges & Noel, Chicago, 111.
Please advise me whether a financial statement Avas ever furnished you by the Partin Manufacturing Company of Memphis, Tennessee, during the Avinter of 1916-17, or at any other time. If so please furnish it to me Avith the envelop in AAdiich it was received, for use in an investigation to determine AA’hether this concern or its officers violated the postal Iuavs in the conduct of its business.
“Any information concerning the business transactions AA’ith tins concern will be appreciated, and any papers of value that would contain information on the subject, if furnished, Avill be returned Avlien they have served their purpose.
“Please treat this inquiry as confidential and return Avith your reply.
“Mery respectfully,
“[Signed] G. B. Johnson,
“Post Office Inspector.”
The reply to the above letter reads as folloAvs:
Chicago,, March 25, 11918.
“Mr. G. B. Johnson, P. 0. Inspector, Memphis, Tennessee — Dear Sir: Replying to your inquiry of the 23d instant with reference to Partin Manufacturing Company, beg to advise that Ave have at no time received a financial statement from them, nor any correspondence that might be in violation of the postal laAvs. Our business transactions merely represent sales of merchandise, for Avhich we received in payment indorsed paper from their customers, and, inasmuch as they made no request for credit, we had no occasion to aslt for a financial statement.
“Trusting this information will be of some sendee to you AAre remain,
“Yours very truly,
“[Signed] Despres, Bridges & Noel.”
The Post Office Inspector testified, further, that during March or April, 1918, he went to the office of the plaintiff1 to investigate its connection with the Partin Manufacturing Company, and that some of the officers of the plaintiff admitted that they liad some trouble in collecting previous notes assigned to them by the Partin Manufacturing' Company, and that they knew something of the business conducted by the Parti Manufacturing Company. This conversation is very indefinite as to when or under1 what circumstances or as to what notes this trouble and knowledge related. We think it is wholly insufficient to warrant submitting to the jury as evidence of fraud in the present transaction.
The defendant was. introduced, and testified as to making delivery of the notes in question, and that the Partin Manufacturing Company supplied a portion of the goods ordered, but failed to furnish other goods, and failed to send a skilled advertising manager which the Partin Manufacturing Company agreed to furnish under its contract. He testified that he went to Memphis on several occasions, and urged the Partin Manufacturing Company to comply
The officers of the bank at Indianola, Miss., wore not examined, nor Avas' there any evidence to show that the note Avas sent by the Partin Manufacturing Company for collection. It does appear that'the defendant wrote the Partin Manufacturing Company that the note was presented at the Avrong bank, and that the Partin Manufacturing Company Avrote that future notes Avoulcl be sent to the right bank, and that the note Avas sent to the wrong bank by oversight. There is no shoAA-ing that the plaintiff had any lcnoAvledge of this correspondence, and the plaintiff’s proof is clear that the notes Avere sent by the plaintiff through its bank for collection. We think there was no sufficient showing of any knoAvleclge on the part of the plaintiff of any fraud on the part of the Partin Manufacturing Company in procuring the notes, nor is there any shoAving sufficient to Avarrant the conclusion that the plaintiff had any knOAAdedge of the agreements between the Partin Manufacturing Company and the defendant.
The court beloAV refused a peremptory instruction for both plaintiff and defendant, and only one granted instruction appears in the record, which is for the plaintiff, and reads as follows:
“The court instructs the jury that if they believe from the evidence that the plaintiff Aims an innocent purchaser of the notes in question for value, before maturity, they will find for the plaintiff for the face of said notes, six per cent, interest, from maturity, and protest fees.”
. There Av.as a verdict for the defendant and a motion for a new trial, AAdiich was overruled.
The present suit is governed by the Negotiable Instrument Act, being chapter 244, Laws 191G, Hemingway Code,
“But where the instrument is in the hands of a holder in due course, a valid delivery thereof by- all parties prior to him so as to make them liable to him is conclusively presumed. And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proven.”
By section 24 of the act it is provided: “Every negotiable instrument is deemed prima facie to have been issued for .a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.”
By section 25 of the-act it is provided: “Value is any consideration sufficient to support a simple' contract. An antecedent or pre-existing debt constitutes value, and is deemed such whether the instrument is payable on demand or at a future time.”
By section 26 of the act it is provided: “Where value has at any time been given for the instrument, the holder is deemed a holder for value in respect to all parties who became such prior to that time.”
By section 28 of the act it is provided: “Absence or failure of consideration is matter of defense as against any person not a holder in due course; and partial failure of consideration is a defense pro tanto,, whether the failure is an ascertained and liquidated amount or otherwise.”
*615 By section 60 of the act it is provided: “The maker of a negotiable instrument by making it- engages that he will, pay it according to its tenor, and admits the existence of the payee and his then capacity to indorse.”
We think this last section eliminates from consideration the plea that the note was void because the Partin Manufacturing Company had not filed its charter in this state. The several sections above quoted, Avhen applied to the evidence in this case, make the defendant liable to the plaintiff. The testimony for the plaintiff is clear and unequivocal, and the proof offered by the defendant is insufficient to require the submission of the case to the jury, and the refusal to give a peremptory instruction for the plaintiff Avas error. ■ As there is no evidence to prove fraud, and no evidence sufficient to prove notice on the part of the plaintiff of any infirmities in the papers prior to the time of their1 acquirement, the judgment of the loAver court will be reversed, and judgment AArill be entered here for the plaintiff.
Beversed and judgment here for the appellant.
Reversed.