Hall v. Box

94 So. 221 | Miss. | 1922

Ethridge, J.,

delivered the opinion of the court.

The appellant sued the appellee upon a promissory note reading as folloAVS:

“16,500.00. Belzoni, Miss., .July 19, 1020.

“One year after date I promise to pay to myself or bearer at Bank of Belzoni, Belzoni, Miss., sixteen thousand five hundred dollars, with eight per cent, interest per annum from date until paid, value received. If this note is placed in the hands of an attorney for collection, the makers and indorsers hereof agree to pay the holder au attorney’s fee of ten per cent, upon the amount due. Demand, protest and notice waived by makers and indorsers hereof.

“Post Office, Midnight, Miss.

“[Signed] C. B. Box.”

The appellant alleged that he was the owner and holder of said note in due course, and payment had been refused, etc., demanding judgment. The defendant filed a plea of non est factum. This plea is, in full, as follows:

“And for a further plea in this behalf, the defendant says that the plaintiff ought not to have his aforesaid action against him, the defendant, because he says that he did not make and did not deliver the writing in the said declaration mentioned, in the manner and form as plaintiff has above in that regard alleged; and of this the defendant puts himself upon the country.

“[Signed] Barbour & Henry,

“Mortimer & Syices,

Attorneys for Defendant.

“State of Mississippi, County of Humphreys.

“Personally appeared before me, the undersigned officer, in and for the county and state aforesaid, C. B. Box, who on oath states that he did not make and he did not deliver the instrument sued on in the above-styled cause, purporting to be a promissory note of the said Box; and that he did not promise in the manner and form set forth and alleged by said declaration. . [Signed] C. B. Box.

“Sworn to and subscribed before me, this 20th day of February, 1922.

[Signed] W. P. Shackleford, Cir, Clk.,

“By R. L. Waugh, D, C. [Seal.]”

Indorsed: “Filed Feb. 28, 1922. W. P. Shackleford, Clerk.”

The appellant testified that he bought the note in question' from one L. B. Bays, cashier of the Bank of Houston, Miss., and that he paid twelve thousand five hundred dollars worth of county bonds and government Liberty and Victory bonds, and that he had no notice of any defense or infirmity in the note at the time of its purchase, and that he bought on the faith of the commercial rating of Box, the defendant; that the commercial rating of Box showed he was amply solvent. This purchase was made in the spring of the year 1921, prior to its maturity in July, 1921.

The plaintiff also introduced Mr. Golden, who testified that in 1920 he was employed by Mr. J. W. McClintock of Belzoni, Miss., to sell stock in the Arkansas & Texas Oil Company, a corporation in which Mr. McClintock was a stockholder and officer, and that he Avent to Mr. Box and sold him stock and took the note in question in payment therefor. This note was signed and indorsed on the back by Mr. Box at the time and was left by the witness at the Bank of Belzoni, in AAdiich bank Mr. McClintock also had some interest. That he left a memorandum for Mr. Mc-Clintock and that the note was signed at Box’s residence, on his front gallery, at Midnight, Miss. Mr. Box testified' that Mr. Golden came to his place some time prior to the 19th of July, 1920, and desired to sell some oil stock, but he told him that he had no money and that he was barely able to finance his business operations, and that Golden stated that he did not desire his money, that he wanted him to listen to his scheme, and that he explained his scheme, and that the proposition Aras to make him an honorary stockholder in the oil company because of his prominence, and stated that the dividends.on the oil stock would pay for them and that he did not sign any note knoAving it to be a note, but that Golden presented him with an application for stock in an oil company or a note in that form, and he read it, and after reading it he was called momentarily aAvav by a negro for some purpose, and that he returned and signed the application which Avas on a brief case or something of that kind, and that Golden told him then that he wanted him to sign it on the back so the company Avould understand that the dividend would be applied on the payment of the stock. That he never signed’any note consciously or knowingly, and that he only signed a stock application, or a note in that form. Box testified that the signature on the back of the note Avas his genuine signature, but could not say positively whether the signature on the face of the note Avas his signature or not. That it looked a good deal like his signature, but he was inclined to think it was not his signature because tbe letter “x” was not made as he usually made it in signing his name. A number of instruments were presented to Box which he admitted signing; and were introduced in evidence for purposes of comparison. It appears -from his testimony that in some of the writings which he signed that the letter “x” was similar to the one on the face of the note and especially in reference to the registration books when he signed as a voter. There were a number of checks and notes introduced for purposes of comparison. Mr. Box’s testimony as to the signing of the note and as to the circumstances is corroborated by .a woman who was living at Box’s house and was assisting him in his business, and who was sitting in her room near a window right near to where Box and Golden sat during the conversation. Another witness, Mr. Castleman, testified that he knew Mr. Box’s signature and had had a number of transactions with him, and that the letter “x” on the face of the note in his judgment was not Mr. Box’s signature; that the signature was not Mr. Box’s, as the letter “x” in his name was not made as Box signed his name to checks and notes in his dealing with Castleman. Mr. Castleman was also asked about certain of the admitted signatures of Mr. Box, and said that in his judgment they were not Box’s signature, for the reason that the letter “x” was not made as Mr. Box made it in signing his name to checks, etc.

It appears from the evidence of Box that after the transaction with Golden the shares of stock came to him accompanied by a dividend check for July, 1920, and that •subsequently another check for another dividend was received by him, but Mr. Box testified that no letter accompanied these checks and stock, and 'that he was expecting the confirmation from the company of the transaction in accordance with Golden’s representations; that he laid the stock and checks in the pigeonhole in his desk and kept them there, refusing to bank his checks, and he had no notice of the note until he was notified a few weeks before the maturity of the note by Mr. Hall that he held the note and would expect its payment at maturity; that he had no recollection of any such note and searched his books and could find no charge indicating such note or debt, and that in the search he found the stock and checks in the pigeonhole where they had been placed; that he thereupon wrote the company a letter, which appears in the record, in which he claimed that the company had not' complied with Golden’s agreement and requested the return of his note, using the term “note” in the said letter. He also wrote Mr. Hall desiring further information about the note he held, stating he had no recollection of such note, and that it was unusual to give a note maturing at that time of the year when no crops were moving, and that Mr. Hall wrote him back giving the date of the maturity of the note and informing him that unless it was paid suit would be brought.

The plaintiff requested and was refused the following instructions:

“The court charges the jury that, if you find the defendant carelessly or negligently failed to exercise reasonable care in observing the nature or effect of the instrument sued on when he signed or indorsed the same, then he is estopped to deny that he did not know that he was then executing his promissory note; and, under such finding, you must return a verdict for the plaintiff, even though you may believe the defendant did not know that said instrument was a pi'omissory note, provided you find that the plaintiff purchased said note before maturity for value in good faith and Avithout actual notice of defect of title of the person from Avhom plaintiff bought said note.

“The court charges the jury for the plaintiff that, if you find that the defendant signed or indorsed the instrument here sued on, AA'ithout talcing the precaution that an ordinarily prudent man Avould take under the circumstances to observe the nature of the instrument he was signing or indorsing, you Avill find for the plaintiff, although you may believe that the defendant did not actually know said instrument Avas a promissory note, provided you further find that the plaintiff is a bona- fide holder of the instrument sued on in due course.”

The court granted the defendant the following instruction, among others:

“The court instructs the jury that you Avill find a verdict for defendant unless it appears from the evidence that the note sued on was actually signed and delivered knowingly and consciously by Box.”

It is urged by the appellant that he should have had a peremptory instruction which he requested and was refused, and also that it was error for the court to refuse the requested instructions above set out, also that it was error for the court to give the instruction above set out for the defendant. The appellee contends that, he is not liable on the note because of fraud perpetrated and because the instrument sued on was not the instrument which he read and Avhich was read to him as being Avhat he signed at the time.

We are of the opinion that the plaintiff should have, been given the instructions set out announcing the principle that if the defendant Avas negligent in the transaction that he would be liable on the note in the hands of a bona-fide purchaser. The issue should have been submitted to the jury as to whether or not, under all of the facts and circumstances, Box Avas guilty of negligence in failing to exercise the care and prudence that an ordinary man would have exercised. We think that a party who signs a note Avithout exercising such ordinary and reasonable care as an ordinarily prudent ■ person shoul d under the circumstances, and his note passes into the hands of a purchaser for Avalué Avithout notice, and he cannot set up a defense that involves his negligence as against such bona fide purchaser. Bank v. Rhodes, 96 Miss. 700, 51 So. 717.

The laAV governing defenses to negotiable instruments on the ground that the maker or indorser was deceived into signing a negotiable instrument, believing that it was some other kind of instrument, and Avithout knowing its true character, is very clearly stated in the text in 8 Corpus Juris, 792, 793:

"Necessity of Freedom from Negligence. — It is absolutely essential, however, that an obligor, to invoke this immunity, must exercise ordinary diligence, and in no way negligently contribute to the' imposition. Negligence on the part of the maker or acceptor will defeat any right that he may claim or attempt to set up in defense' of such note in the hands of a bona fide purchaser, even though he may establish a claim of actual fraud, practiced on him in the procurement of the instrument. Hence one in possession of his faculties who has the opportunity for examination and relies on the representations of persons with whom he is dealing cannot claim exemption for his act. if the instrument which he signed should prove other than he had been led to believe. The reason for this rule is that whenever one or two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it.

<rWhat Constitutes Negligence. — It is impossible to state any general rule as to what acts or conduct of defendant will amount to such negligence as will permit a recovery in the cases now under discussion, since, as will be seen from an examination, of the authorities, the different courts have taken very widely different views of the subject. Negligence is generally a question for the determination of the jury, all the facts and circumstances of the case- being considered. But where a state of facts is admitted or not disputed, negligence may exist as a matter of law. The jury may take into consideration, it would seem, the age and mental and physical condition of the person signing, as well as' mercantile usages of trade and commercial intercourse as to negotiable paper.”

Reversed and remanded.