Gillespie v. Planters' Oil Mill & Manufacturing Co.

76 Miss. 406 | Miss. | 1898

Terral, J.,

delivered the opinion of the court.

Wm. A. Drennan, Jr., executed and negotiated his domestic bill of exchange of the following tenor:

“$500. Greenwood, Miss., jan. 23, 1893.

“April 23, 1893, pay to the order of myself, five hundred dollars, at Delta Bank, Greenwood, Miss., value received, and charge the same to account of Wm. A. .Drennan, Jr.

‘‘ To Planters’ Oil & Manufacturing Company, Greenwood, Miss. ’ ’

Indorsed, Wm. A. Drennan, Jr. Across the face of the paper was written, “Accepted. T. Staige Marye, secretary, ” etc.

This paper came into the hands of W. M. Gillespie, who brought suit thereon against .the Planters’ Oil Mill & Manufactoring Company. The declaration alleged presentment, protest, and notice.

The defendant pleaded: (1) General issue; (2) payment; (3) that the bill of exchange was given to Gillespie as collateral security for a debt; and (4) want of consideration. These pleas were traversed by E. C. Gillespie, administratrix, and the case went to the jury. Upon the trial the plaintiff read in evidence the bill of exchange sued on, and also offered in evidence a copy of the protest of said bill of exchange, which was not sworn to, and which was excluded. The plaintiff then introduced Bew, the officer who made the protest, and offered to prove by him the protest of the paper, and his evidence was excluded.

Thereupon the plaintiff amended her declaration by striking out of it the- allegations of presentment, protest and notice. Each party requested a peremptory instruction; the defendant’s was given, the plaintiff’s was refused.

1. Upon the case made before the court the plaintiff was entitled to recover. It was not necessary for this bill of exchange to have been protested as to the defendant, the acceptor.

Judge Campbell, in Meggett v. Baum, 57 Miss., 27, said: “We can find no substantial reason for a distinction between co-makers of a promissory note one of whom is a surety, and an accommodation acceptor. Both have assumed by their signatures a promissory obligation. Both have made themselves principals.” The same principle is recognized by other authorities. 2 Am. & Eng. Ene. L., 378; 1 Daniel on Neg. Inst., sec. 532.

2. It is said, however, that the plaintiff was not shown to have been entitled to recover, because there was no proof that the defendant, the Planters’ Oil Mill & Manufacturing Company, is the same person as the.Planters’ Oil & Manufacturing-Company. This point cannot be sustained; the defendant has precluded itself from raising this objection by its course of pleading. £iA misnomer can be taken advantage of only by a plea in abatement; any step in the cause recognizing the identity of the corporation sued with the corporation defending precludes the defendant defending on the ground of misnomer.” Railroad Co. v. Reedman, 11 Lea (Tenn.), 205; 2 Beach on Private Corp., sec. 864. “The name of a corporation frequently consists of several words, and an omission or alteration of some of them is not material. ’ ’ Angelí & Ames on Corp:, sec. 99.

3. It is also said that there was no proof that plaintiff’s intestate was an innocent holder for value before the maturity of the paper. Prima facie the holder of a-promissory note, payable to bearer, is presumed to be a holder bona fide and for value. Craig v. City of Vicksburg, 31 Miss., 216. That a note payable to drawer and indorsed by him in blank stands upon the same footing and is governed by the same rules as a note payable to bearer, is announced by the distinguished judge first above quoted in Bank v. Wofford, 71 Miss., 712.

Reversed and remanded.