Lenoir v. Moore

61 Miss. 400 | Miss. | 1883

Cooper, J.,

delivered the opinion of the court.

This is a suit brought by the appellee against the appellant and • the firm of Hoskins & Brother on a promissory note. The defendants pleaded jointly two pleas of payment, one being general in its terms, and the other setting up the special manner in which the payment had been made. Both pleas were of payment in full. By agreement of counsel it was provided that the appellant should be considered as having pleaded the same pleas alone. The cause was submitted on these pleas to the jury, which returned this verdict: “We the jury render verdict in favor of James L. Lenoir, defendant.”

The plaintiff moved to - arrest the judgment on this verdict, because it did not find all of the issue submitted to them, being silent as to the defendants, Hoskins & Brother. This motion was sustained, the judgment \vas arrested and a new trial awarded. To this action of the court the defendant Lenoir excepted, and the subsequent trial having resulted in a verdict and judgipent against him, he now appeals and assigns as error the action of the court in arresting the judgment on the first verdict.

The matter pleaded by the defendants went to the absolute'discharge of the obligation sued on, and if the verdict was.rightly found as to one defendant, its legal effect was to discharge them all. If there had been a default taken against Hoskins & Brother, and the cause had then been submitted to the jury on the plea of payment by Lenoir, and the issue had been found for him, the plaintiff could not have taken judgment on the default against Hoskins & Brother, for the successful defense of Lenoir would have enured to their benefit. Graham’s Practice 321; Tuttle v. Cooper, 10 Pick. 281.

If the plea of Lenoir had been of any defense personal to himself the verdict would have been defective, as not disposing of the issues submitted as to the other defendants, but payment by one defendant was payment by all, and the judgment should have been for all on the verdict returned.

The judgment is reversed and a judgment entered here on the first verdiet.