101 So. 292 | Miss. | 1924
delivered the opinion of the court.
. The Bank of Woodland sued J. S. Simpson and the H. B. Owen Tie Company on a contract originally made between the bank of Woodland and Simpson by which the bank furnished Simpson with money to purchase and get out cross-ties, taking Simpson’s notes therefor, with an agreement to sell ties as collateral. These notes became due in the sum of eighteen thousand dollars before D'ecember 18, 1920, about which time the bank wrote Simpson, which letter is not made a part of the record and its contents not fully disclosed, but which is referred to in a letter written b3r the H. B. Owen Tie Company'to the bank on December 18,1920, which letter reads as follows:
“Algoma, Mississippi, Dec. 18, 1920.
“Mr. P. B. Hays, Cashier, Woodland, Miss.' — Dear Sir:
Mr. J. S. Simpson has just handed me a letter from you regarding amount due your bank of eighteen thousand dollars in which 3rou desire a statement from us that we will take up and pay you for his ties by Jan. 1st. We are so rushed up with work now that we are not sure that we can get all his'ties taken up by January 1st, but we will agree to pay >rou for all ties taken up by January 1st, and if we do not get that miuch taken up by that time will take them after January 1st, and pay you until this amount is p^id. Or if it would suit we might take an inventory of his ties on, January 1st, or soon thereafter and give our note to cover the amount of the ties.
“Very truly,
“H. B. Owen Tie Co.
“By H. B. Owen.”
In order for the letter to have had the effect of making a contract there must have been an acceptance of its terms, and an agreement to forbear proceeding against Simpson for a definite period which would be binding upon the bank, or there must have been a release of liability against Simpson. This the record wholly fails to show. But the bank held to its obligations against Simpson, and Simpson was sued in this case as a codefendant.
In J. H. Queal & Co. v. Peterson, 138 Iowa, 514, 116 N. W. 593, 19 L. R. A. (N. S.) 842, the Iowa court dealt wiht a similar case, and the following rule is announced in the syllabus in that case:
£iAn agreement in writing by one-to take up a past-due note of another if it remains unpaid at a certain future fiate, without additional consideration to support it, is without consideration, and unenforceable, where the promisor makes no request for forbearance of suit against the maker of the note, and the promisee does not agree to forbear suit; and the mere fact that he does so forbear
Various authorities on the question before us are collected in the note to the L. R. A. report of this case.
We think there was want of consideration and that the ■letter was not definite and certain, as it contained at least two different propositions, neither of which is shown to have been accepted.
The judgment of the court below will therefore be reversed and the cause dismissed as to the appellant, IT. B. Owen Tie Company.
Reversed and dismissed.