Rhyne v. Miller, No. 23621

No. 23621 | Miss. | Nov 12, 1923

Ethridge, J.,

delivered the opinion of the court.

J. D. Rhyne, a minor, entered into a contract with Miller, doing business under the name of the Standard Motor Company, for the purchase of an automobile for seven hundred, twenty-nine dollars and ninety-five cents upon which he paid three hundred thirteen dollars and ninety-five cents in the following manner: He paid thirty dollars cash, and gave a check for the balance, which check was paid by the bank to Miller, The father of J. D. Rhyne, D. E. Rhyne, also signed the contract at the bottom thereof, and also as a witness because Miller required the father of the minor to sign the contract. The minor, J. D. Rhyne, just before giving the check to Miller, had deposited a check in the bank to his account for three hundred fifty dollars, given on the Bank of Hattiesburg by a person named Lottie Vick, which check was returned by the Hat-tiesburg Bank unpaid, making tbe account of-J. D. Rhyne at the bank in Laurel stand overdrawn. The father, D. E. Rhyne, at the request of the son, deposited in the bánk enough money to cover.the overdraft.' Thereafter J. D. Rhyne, the minor, returned the car to Miller and demanded the return of the money paid thereon. Miller received the car, but refused to repay the money paid, and the minor, through his father, as next friend, brought this suit to recover the money so paid. The court below granted a peremptory instruction to the plaintiff for the $30 paid, but refused to permit the recovery of the balance, from which judgment the plaintiff appeals.

The appellee justifies the judgment of the court below upon the theory that the father’s money actually made the payment on the car represented by the son’s check, and that the father had signed the contract with the son, and it was in effect merely satisfying his own obligation, and the payment did not represent the money of the son, who was plaintiff. We do not think the judgment can be sustained on this basis. The plaintiff, the minor, gave the defendant his personal check, which was honored and paid by the bank. The plaintiff, at the time of giving this check, had deposited another check to his account, which was unpaid, and therefore in the state of facts left his account overdrawn. This was a matter between the bank and the plaintiff, of which the defendant had no concern; the defendant not being responsible to the bank for the amount so overdrawn. The fact that the father paid the overdraft to the bank is not the same as paying it to Miller. It was subsequent to the transaction between the plaintiff and the defendant, and under the plaintiff’s testimony he stands debtor to his father for this sum. Whatever rights Miller may have against the father, D. E. Rhyne, on account of his signature to the contract, in no manner affects the plaintiff’s right to recover the money paid by the plaintiff to "the defendant.

The cause will therefore be reversed, and judgment entered here for the appellant for three hundred thirteen dollars and ninety-five cents with interest from the date of filing suit.

Reversed and rendered.