*1 656
limit,fl.fiоn con record was filed in this court, before sequently be Miller dismiss must sustained. the motion to Phipps, 170. Miss. 119 So. v. appellant’s is, substance, the motion answer to
The stenographer of the court below to file that he notified the paid charges transcript him his of the evidence and perfect to do’ was all that he had therefor, which filing delay appeal, in the record charged him, not to in this court should below clerk of court below. The clerk of the jurisdiction negligent, does not confer but that fact have saved the situa- The could on this court. became overdue in this court, when record tion by applying quite before it was filed, it did a while directing the clerk to file writ of certiorari it. for a Appeal dismissed.
Montgomery Yarbrough. v. Suggestion (In March of Error Overruled Banc. Feb. 1942. 1942.) (2d) 305. No. [6 34848.] *2 (In 23, 1942.) Banc. March (2d) No. [6 34848.] 925. A. Carmichael, Ala., Gober, C. Tuscumbia,
A. H. Gettys Cunningham, & all of Lee, A. Jr., Jas. Sr. Iuka, *3 appellant. for Booneville, Corey,
Lyle appellee. Meridian, V. *4 Lyle Corey, appellee. Argued orally by V. opinion of the court. McGehee, J., delivered against by chancery This is a suit attachment subject appellant to the as nonresident his lands promissory notes which he of two certain on appellee as which are held as- and endorser, signee Tuscumbia, The notes Bank Alabama. Alabama, in the were delivered State of executed and appellant liability controlled and therefore the by the law of that state. substantive was executed
One of notes J. W. Stockton principal 8, 1932, maker for sum of due March $395> the other D. M. and D. C. Hand and was executed principal makers for the sum of due October $330.30', mortgage Each were 1932. of the notes secured chattel belonging products agricultural certain livestock respectively, to the said Stockton Hand, ample collaterals were more than in value to take care each *5 appellant shown that the It was further had several regard conversations in to these with the officer notes years immediately following during of the bank the three maturity, just their was said he did recall what except particular these in on the col- occasions “that ample pay against lateral there it wаs it was and all get they go and that should ahead that it;” and February, though long past the due, Hand note, agreement parties written was extended of all the the November, until and collateral was still exist- again payment having ence when note fell this no due, Subsequent ever been made thereon. to November, 1935, conveyed by mortgage all securing the livestock of the chattel disposed the had of notes died had been agricultural products mortgagor, grown also the each year disposed had been of. testimony appellant
The effect of the offered alleged liability defense to his endorser *6 appellant endorser the as relieved behalf, that failure in liability question for and thereon; the from further cross-appeal of is whether our statute on the decision applicable, or is Code of 2292, 1930, Section limitation, payments the on mentioned made the above whether appellant, by the of his with funds note the Stockton principal the to toll Stockton, served tenant as maker, six-year applicable running of the statute of and render 8941, 8944, the of Sections Alabama, limitations of State 7, 21, Ala. of Tit. Secs. 1923, 1940', Code 8964, 18, Code providing promise, or act, that the latter section “no 40', acknowledgment bar to a suit is to remove the sufficient by chapter, provisions or is evidence of the of this created except partial а contract, new and continued a sought charged by party the be to made the complete, unconditional or an the bar before charged party thereby,”— signed writing, the to recovery granted having court below a the decree of the appellee the Hand for full amount of in favor of the the including principal, at- interеst a reasonable and note, together torney’s provided all with fee, therein, as recovery having denied in favor of the and a suit, cost ground appellee on that the on the Stockton note the of payments partial thereon dur- made years ing bar 1933, of 1932 of and before complete, prevent statute of limitations did beginning to run from the due date of the statute' from said note. 748, Edwards, 649, 11
In the ease of Howle v. a that where on December it was held decided alleged surety on a and note, defendant was sued requested bring of the note to defense that he the holder long at time, afterwards, and thereon; suit property principal personal from which the notе his had the creditor to have been failed collected, could permitted principal bring requested, suit as dispose property, plea to of a demurrer to debtor his have been since overruled, should Section 3153 (brought then, in Code Alabama force forward 9555', 1923,. amended as Section Code Code Ala. 1940, 89) provided surety may requirе Tit. Sec. that a bring against writing a creditor notice in suit surety principal if he does not do so the debtor, and, abrogate discharged, does not the common rule that law request though of the holder of a such ing, not in writ- note,
discharges surety by negligence when, against prin- recovery creditor to sue, means cipal are lost. Supreme recognized
But Court of Alabama has surety request part distinction between a on the of a against principal bring suit maker note and surety mortgage. foreclose In *7 case of Branch the Bank of Alabama v. Perdue, Reports 7 Smith’s Alabama Condensed of one pleas surety of of the he a the defendant was that and is gave plaintiff notice to the to foreclose a mort- such, gage principals, which had been it executed to his proceed mortgage, plaintiff the to which, but failed on its ample security, at time of but notice, the the was has depreciation mortgage premises, since, the of the proved payment insufficient for the of the debt. The plaintiff plea, joined issue on the case tried the and by jury resulting a a verdict for the defendant. The charged jury given the that the court the de- notice mortgage to foreclose the fendant it the was sufficient to make duty plaintiff comply request of the to with the delay. the of defendant without the And, court said: “It been decided, has so often toas be the considered surety may quicken law of settled this a the Court, diligence by requiring put the creditor, him to in suit security by upon the which the is debt and if evidenced, requisition, brought, appears such suit is not and it subsequent might available,
it have made in- been solvency principal, good surety, defence for principle even . . . But this we think at law. cannot appliеd disturbing equally be without well settled, others surety require principal, to so as to authorize the proceed security mere notice, to collateral he may By have for the of the debt. a collateral surety security, mean one in we which is not bound, apart principal primary or one which is engagement. from the or principal surety promise “Where make a direct pay writing money, to in addition, one or both of mortgage per- to them execute a to secure creditor, undertaking, obliged of their formance the creditor is not may proceed upon mortgage, to his either foreclose prosecute upon at law action of the it, surety. mortgage security debtor his The ais mere regarded legal for the debt, and is an incident to the pay. . . . to ‘ ‘ principle recognizes right surety The of the require principal put to the note or bond be proceed upon implied- suit, must the idea that the creditor ly being undertakes to do notice to that so, effect given Mfg. Sweeting, him. In the Manchеster Iron Co. v. says plaintiff [N. Wend. Y.], 162, where the prosecute principal, refuses to on the surety, neglect agreement discharge his virtual responsibility and look alone former, of reasoning applied latter. But cannot this to a notice mortgage, part to foreclose a for that constitutes no pay merely the contraсt to but is debt, assistant to ” it. *8 Montgomery Company Bank In the case of & Trust Kelly, by v. 612, 614, relied on appellant, special it was that in held absence of a agreement, pledgee is invested with discretion with respect subject pledge, of the to sale is not liability bound to sell collateral in order avoid to its depreciation maturity occurring after the of the debt to pledged; property secure which the is but that where a pledgee agrees pledged property contract to sell the upon payment thereby default debt secured, pledgee obligated agreement to do so virtue of his contained the contract. In that however, the case, expressly stipulated sued for a sale of the upon collateral affirmatively default in the of the notes, and plaintiff
bound the to do so, and premises, held that in such case “no discretion in the like recognizes special that the common law in the absence of agreement, pledgee, plaintiff; left in the no prerequisite notice or demand the defendant was a plaintiff’s liability рlaintiff if the breached its con- tractually positive duty upon hap- assumed, to sell pening stipulated.” of the event In that case, however, plaintiff agreed sign that if the defendant would plaintiff renewal notes, the bank the bank sell stock would they held which it paid maturity. as collateral if were notes, not agreement at In other to sell words, paid maturity the collateral if the notes were not at constituted the consideration which the defendant clearly distinguishable endorsed same. That case surety from the case at bar in that the made mortgages transpired that the chattel be foreclosed after maturity alleged agreement of the notes, and the merely promise something holder to do so was to do supported by future, was not being representation past and not consideration, of a existing merely expression but fact, an of a future equitable estoppel against did work intention, an appellant the holder of the notes to later sue the en- question dorser thereon. On the consideration, requesting endorser did not at the time mortgages a foreclosure of the chattel surrender his right pay assignment thereof, debt and take acquiesced years for three in the failure of. the having mortgages, holder of the notes to foreclose the *9 rights premises he had that in the at all times the same estoppel, request the issuе As to of the was made. when necessary acts or when the consideration is wherein no insisting estop party him from are to of such as conduct a upon Supreme right, in the case Alabama Court of Troy quotes Rogers, 20 So. of v. they by estoppel conduct, elements of an the essential were Bigelow Estoppel (1st his work stated Mr. in p. 489), to effect that his statement Ed., representation and also ordinary upon cases in all
relied “must present things; past for, state have reference to or something representation party concerning if a amake generally a mere statement be either in the it must future, knowledge opinion, uncertain to the intention or partiеs, or it will with both peculiar come a contract, say,
consequences it of a That is to contract.” supported neces- must be a consideration and the other sary further elements of a contract. court then The says quotes Bigelow approval when that Mr. with he morality person -by any “a good bound, cannot be rule of or change intention; not his nor can he faith, change merely precluded showing because from such represented previously he has were his intentions eventually once those he executed. different from which (of wholly estoppel) reason fails when The doctrine of representation only present relates to a intention purpose party, being uncertain, of a in its nature because, properly chang'e, it and liable to form a basis could party reasonably or inducement which a could ’ ’ adopt any permanent fixed and course of More- action. years 'three over, had known for steps taking *10 amount Hand note sued and that for, such decree cross-appeal must be likewise affirmed on the wherein it recovery denied a on Stockton note which fell due being six-year 8, on March barred statute 1932, notwithstanding partial payments of limitation, sub- sequently made thereon, 2292, Sec. Miss. Code of 1930, governs remedy since the lex as to the for the enforce- fori right ment aof state under this a еxecuted Wright in another state. v. 77 Miss. 27 Mordaunt, 537, Rep. Philp 640, 536; So. 78 Am. St. Hicks, v. 112 Miss. 581, 73 Fisher 610; v. Burk et 123 al., Miss. 86 781, So. 300; 11 Am. 506, Jur. Sec. 191. ‘‘ application, 2311, Section Code of has no 1930, because purpose give its sole are to to one effect this sued completed Wright state the benefit of a bar elsewhere.” supra. v. Mordaunt, appellee motion of the
Yhe for an allowance this attorney’s an court of for services fee rendered on this appeal hereby must be and it is overruled notwithstand ’ ing case of Somerall et al. Bank, v. Citizens authority only 630, 101 So. since that 429, decision proposition for the that trial court to take entitled ap into consideration service rendered on former peal Supreme fixing to the Court in a. reasonable at torney’s fee on a note after reversal and remand for a new trial. cross-appeal.
Affirmed on both direct and Suggestion of Error. On opinion sug- J., Griffith, delivered the gestion of error. applied we note to which to the Stockton reference With six-year 2292, Code Sec. limitations, 1930, statute our maturity ap original note, date of the as of the partial argues pellee law of Alabama a under the operates existing obligation in sub an payment promise. be nevertheless conceded, If this a new stance Bank, National v. First as said Obear true, it remains “a L. 384, 33 R. A. E. 335, 336, 97 Ga. S. promise, prescribing or which a new manner in law implied, promise will be from which such period within in order to extend evidenced shall be brought upon may relates to contract, be which suit remedy, validity the intrinsic not affect and does promise.” own our statutes for look, therefore, to We remedy as to how such relate to matters which may promises at once that we find evidenced, be new provides “In Section Code our statute, acknowledgment upon any contract, actions founded continuing a new or evidence of shall *11 operation whereby of the case to take out Actions) chapter (Limitations provisions of this deprive any'party benefit unless such thereof, or to acknowledgment made or contained сhargeable signed party writing there some or in by.”
Suggestion of error overruled. v. McKee.
McKee 13, 1942.) April (In Banc. (2d) 34878.] 540. No.
[7 of the indebtedness due in instance on notes pledged, were to which same when at the Bank of in the Fall of called Tuscumbia charge officer in and stated to the “the collateral they against there it and worth had and to what says it it, collect collect and whеn he now,” he you replied; worry the officer “Don’t about the collateral get will it out of the —We collateral.”
Notes
on notes was that his conversations with officer of bank request mortgages amounted to a the chattel be fore- not that suit be closed, although instituted on notes, and prior long knew he November, 1935, nothing response thereto had been done in to his requests during preceding several behalf in that the three years, did not at he time tender assignment notes to bank him of might the collateral in order that he foreclose the same, but assumed that the failure of the bank to foreclose mortgages following due dates when notes, ample satisfy there collateral to same, had releasing effect of him as an endorser thereon. appears years during It that Stockton was a tenant years during 1932 and and that those separate payments aggregating made four this $86.30 proceeds grown note from the of cotton the tenant,- payments last of which was on November 20, 1933, prior years filing within six to the date this suit. aр- presented question the direct decision on The the holder peal the demand made or not is whether proceed the collateral and foreclose on the Hand note of security, subsequent alleged agreement to do so, its
holder of notes was no to collect pledged payment. same from the collatеral their His pursued acquiescence in the as the bank, course then holder of further notes, was evidenced having requested fact that of these after foreclosure mortgages agreed chattel ex- October, 1932, he to an February, tension of Hand note until Novem- 1935', obligated himself to remain bound for its ber, 1935, payment making long after he now says liability. him from further released opinion We are therefore of the the decree allowing recovery below correct on the