J. B. Colt Co. v. Black

110 So. 442 | Miss. | 1926

^* Corpus Juris-Cyc. References: Agency, 2 C.J., p. 634, n. 6; p. 926, n. 37; p. 927, n. 45. This suit originated in a justice of the peace court, and was founded on a promissory note executed by the appellee on January 3, 1923, in favor of the appellant, for a balance of one hundred twenty-nine dollars due on the purchase price of a lighting plant. On August 18, 1919, the appellee purchased from appellant a lighting plant, and executed a note for two hundred ninety-nine dollars and forty-five cents, the purchase price thereof. There were various payments and credits on this note which reduced it to one hundred thirty-nine dollars, and, on May 12, 1922, the appellee executed a renewal note for that sum. On this renewal note, the appellee paid the accrued interest, and ten dollars on the principal, and, on January 3, 1923, executed a second renewal note for the sum of one hundred twenty-nine dollars, the balance then due, and it is upon this second renewal note that this suit is based. There was a judgment in favor of the defendant in the court below, and from this judgment this appeal was prosecuted.

The appellee testified that he made a compromise settlement of this indebtedness with one Frank D. Mathis, a collector representing the appellant company, and paid to this collector the sum of forty-nine dollars and fifty cents in full settlement of the note, and he produced and offered in evidence a receipt for nine dollars and fifty cents, and also a receipt for four post-dated checks, amounting to forty dollars, on which latter receipt was written the words, "Temporary receipt in full. To be followed by regular receipt direct from the company." These receipts were signed, "Frank D. Mathis, in Individual Capacity." For the appellant, the testimony, was to the effect that no part of the forty-nine dollars and fifty cents paid to the collector, Frank D. Mathis, was ever reported to, or received by, the appellant; that the said Frank D. Mathis was employed by the appellant company as a collector, and had authority to receive collections and give a temporary receipt therefor, but that he had no authority to compromise a claim, or to give any receipt for the full settlement of an account, when less than the full amount of the account was received, unless the proposed compromise or settlement was approved by the company.

In order for the appellee to avail himself of the purported compromise of this indebtedness, he had the burden of proving, not only the fact of Mathis' agency to collect the claim, but also the authority of this agent to make a compromise agreement to accept in settlement of the claim less than the full amount thereof. 2 C.J. 665 and 690; Howze v. Whitehead, 93 Miss. 578, 46 So. 401. There is no sufficient proof in this record to show that the agent had any authority to make any compromise settlement of the claim without the approval of his principal, and, for this reason, the judgment of the court below will be reversed. In the court below, the appellant requested that the jury be peremptorily instructed to find in its favor for the sum sued for, with interest, less the sum of forty-nine dollars and fifty cents to be credited as of the date of its payment. We think this instruction should have been granted, and, consequently a judgment for appellant will accordingly be entered here.

Reversed, and judgment for appellant.

Reversed.