Phoenix National Bank v. Saucier

59 So. 91 | Miss. | 1912

Cook, J.,

delivered the opinion of the court.

The note sued on is as follows, viz.:

“.$1000.00

“200.00 Purvis, Mississippi, Feh. 28, 1901.

“$800.00 On October 1, 1908, after date, for value received, we promise to pay to the order of J. C. Crouch & Son, or hearer, one thousand dollars, at the Lamar County Bank, of Purvis, Mississippi, with interest at the rate of six per cent per annum from date until paid. Interest payable annually. If suit is brought on this note, we promise and agree to pay a reasonable attorney’s fee. The drawers and indorsers severally- waive presentment for payment, protest, notice of protest, and nonpayment of this note, and to secure the payment of this note the right is expressly waived to claim any and all exemptions allowed by the constitution and laws of the state of Mississippi or any other state. J. J. Saucier et al.”

On back of note is indorsed the following: “Paid on this note Feb. 28, 1907, two hundred dollars. $200.00.”

Indisputably, plaintiff was a bona fide holder for value, without notice of defenses set up in the pleadings. The defendants, makers of the note, claim that the note was given for the purchase money of a certain stallion sold to them by the payees, J. C. Crouch & Son; that the stallion was represented to be a German coach horse, and it was guaranteed that he would foal seventy-five per cent, of the mares bred to him. They say, further, that the horse was not what he was represented and guaranteed to be, and that the amount of cash paid at the time of the execution of the note, and credited as a payment thereon, represents the full value of the animal. In other words, defendants claimed the defenses provided by section 4001 of the Code of 1906, commonly called our “anti-commercial statute.”

Was this note assignable by mere delivery, or was it such a note as required the indorsement of the payee to convey title to a purchaser? If the note had been made payable to “J.. C. Crouch & Son, or bearer,” it wonld not be questioned that a delivery to the purchaser, without indorsement, conveyed title to same free from all defenses which the makers may have against the original payees. It is contended, however, that the peculiar phraseology of the note changes its character, and constitutes a note payable to order, and that the indorsement was necessary to the transfer of the paper.

We do not agree with this contention. In our opinion the indorsement was merely surplusage, the note being payable to bearer; and though it may be true that the payees became sureties, or grantors, by reason of their indorsement in blank, it does not follow that the makers would be entitled to the defenses claimed under section 4001 against purchasers for value without notice. Since the note was in legal effect payable to bearer, there was no issue to submit to the jury, and they should have been directed to find a verdict for plaintiff

Reversed and remanded.