57 So. 4 | Miss. | 1911
delivered the opinion of the court.
W. B. Johnson and wife were indebted to one Bluett Lee, and in order to secure payment of this indebtedness, on December 24, 1904, executed a certain deed in trust upon certain real estate. Subsequently to this Johnson
The defense set up by Shields was that at the date of the transfer Shields was not to be responsible as an
The court gave the following instruction for the defendant : ‘ ‘ The court instructs the jury for the defendant, Shields, that if they believe from the evidence that Shields did not indorse said notes for the purpose of transferring same to E. B. Hawkins, and that the only requirement of Hawkins from Shields was that Shields was to make the transfer on the record of the deed of trust, then plaintiff cannot hold Shields on said indorsement, and the jury will find for the defendant.” And a verdict was returned for the defendant, and from the judgment entered thereon this appeal is prosecuted.
In the first place, it may be said there was no evidence at all, even if it were admissible*, that the indorser, Shields, was not to be responsible in the event the makers failed to pay the notes. There was in truth and in. fact no agreement one way or the other about this matter. Evidently the conversation relating to having the record show a -transfer of the notes was for the purpose
The indorsement of a bill or note is not merely a transfer thereof; but it is a fresh and substantive contract, embodying all of the terms of the instrument in-itself. The indorsement of a bill is equivalent to the drawing of a new bill by the indorser upon the drawee in favor of the indorsee; and the indorsement of a note is equivalent to the drawing of a bill upon the maker, who stands in the relation of acceptor, as it were, in favor of the indorsee. So entirely distinct and independent is the contract of an indorser of a note thereof and the maker that at common law a separate action against each was indispensable. The indorser engages that the bill or note will be' accepted or paid, as the ease may be, according to its purport; but this engagement is conditioned upon due presentment of demand and notice. It also engages that it is in every respect genuine, that it is the valid instrument it purports to be, that the ostensible parties are competent, and that he has the lawful title to it and
As between the indorser and indorsee there is no difference in the contract of indorsement, so far as the rights and liabilities of the indorser are concerned, when the indorsement is made before and when made after maturity; the only difference being that, when the indorsement is made before the maturity of the bill or note, the time of payment is fixed by the terms of the instrument itself, but when the indorsement is made after maturity, payment must be demanded of the payor within a reasonable time and notice, in the event of a refusal given to the indorser in order to charge him. . In such an instance the instrument is regarded as being equivalent to one payable on demand. Daniel on Negotiable Instruments (5th Ed.), section 611, and authorities cited in notes; 7 Cyc. 822, et seq.; Baskerville & Whitfield v. Harris, 41 Miss. 535.
The' great weight of authority is that, when the facts are few and simple, it is within the province of the court to determine what is reasonable time; but, when,they are complicated and doubtful, they should be left for the ascertainment and judgment of the jury under proper instructions from the court. Further, that when the facts are ascertained it is for the court to determine what is reasonable time as a,matter of law. Daniel on Negotiable Instruments, section 612; Baskerville & Whitfield v. Harris, 41 Miss. 535.
It is elementary that parol evidence is never admissible to contradict or vary the terms of a valid written instrument. While this general principle is admitted to be applicable to all contracts written out in full, some authorities are not willing to apply this principle to those contracts which are raised from implication by the operation of law, such, for instance, as indorsements in blank. Such seems to be the rule in Pennsylvania*
In denying the admissibility of parol evidence to vary or to contradict the terms of a contract of indorsement, we, of course, do not extend this rule, so as to exclude evidence offered to show want of failure of consideration, or in cases of irregular indorsement (Thomas v. Jennings, 5 Smedes & M. 627; Polkinghorne v. Hendricks, 61 Miss. 366; Holmes v. Preston, 70 Miss. 152, 12 South. 202; Richardson v. Foster, 73 Miss. 12, 18 South. 573, 55 Am. St. Rep. 481; Pearl v. Cortright, 81 Miss. 300, 33 South, 72), or to impeach the original or present indorsement -on the ground of fraud, nor to exclude the parol evidence to the effect that the indorsement wa«
The evidence in this case shows that the indorser wrote his name in blank across the back of the notes and delivered the same to a bank, when he hypothecated these notes as collateral security for an accommodation extended by the bank; that when he paid the bank its debts these notes were surrendered to the indorser, Shields; that the indorser did not erase his indorsement, but the same remained on the notes, and when subsequently, he made the contract with" the. appellant, Hawkins, he, the indorser, did not rewrite his name or reindorse the notes, but delivered the notes with the old indorsement thereon — it being a blank indorsement. It was not at' ‘all necessary to reindorse the notes. The delivery of the notes with the old indorsement thereon was an adoption of the former indorsement, and was equivalent to a new indorsement. No authority is needed for so obvious a proposition.
The instruction given for appellee was in direct conflict with this opinion, and the cause is reversed.
Reversed.