Taylor v. Ross, 92 So. 637

92 So. 637 | Miss. | 1922

Ethridge, J.,

delivered the opinion of the court.

This is the second appearance of this case. The first report will be found in 124 Miss. 330, 86 So. 809. The former appeal was from an order overruling a demurrer to the bill. The bill was set out in full, except the exhibit, and we held that the bill stated a cause of action good against demurrer. It is contended now that the opinion then rendered constitutes the law of the case, and was binding on the court below and on this court, and that the judgment now appealed from was unauthorized because of that case.

The former opinion settles nothing, except that the bill stated a cause good against demurrer. No rule of law was announced, and on the remand of .the case the defendants answered the bill, in which answer they denied the material allegations of the bill, and the answer set up that the defendants are not liable on the note as makers, but set up that they were liable only as in-dorsers, and that their- liability as indorsers had been canceled, and they were released because said note did not waive notice or protest, and’alleged that they received no notice that the note was due, nor that it had been presented to the maker and payment refused at the time it was due, and alleged that it never had been protested for nonpayment, nor were the defendants notified of. its nonpayment as required by law; that the said note was payable at the Cleveland State Bank, and was not presented for payment at said bank. The note in question reads as follows:

“$1,280.00. Cleveland, Miss.,

February 24, 1919.

“November 1, 1919, after date, I promise to pay to W. L. Eoss or order one thousand two hundred eighty and no/100 dollars, for value received, with six per cent, interest per annum from maturity until paid.

“Payable at the Cleveland State Bank, Cleveland, Miss.

“This note shall be construed in accordance with the laws of the state of Mississippi’.

“In case this note is placed in the hands of an attorney for suit or collection, I agree to pay all costs and an attorney’s fee of ten per cent, upon the amount due.

“ [Signed] H. L. Eoss.”

Indorsed on back:

“W. L. Eoss.

“W. A. Smith.

“Pay to S. C. Taylor, without recourse on us, in law or in equity.

£ ‘ [Signed] Delta LoaN & Investment Company.

££ By J. A. Crittenden, President. ’ ’

The evidence showed on the present trial that the appellant indorsed a note for about four thousand dollars for one H. L. Eoss, son of the defendant W. L. Eoss, to enable H. L. Eoss to take up another note that Taylor indorsed for Eoss, and delivered the note to H. L. Eoss for this purpose. Eoss went to one of the attorneys for the appellant in the present case, and wanted to arrange with him to take the note and sell it, and as an inducement to do so it was agreed that the note set out above, indorsed by W. L. Eoss and Smith, should be paid out of the funds derived from the sale of the Taylor note. This sale of said note was consummated prior to the maturity of the note above set out, and the defendants, W. L. Eoss and Smith, were notified that the note had been paid by the attorney referred to. The note was purchased by the attorney for another client, and sold to other parties, and out of the proceeds so derived one thousand two hundred dollars was retained by the said attorney to pay the above note. When the note came to the bank for payment, it was found that the note was for one thousand two hundred eighty dollars instead of one thousand two hundred dollars. Thereupon the attorney notified W. L. Eoss and Mr. Smith that there was a balance due of eighty dollars on said note. This was some days after the maturity of the note above set out. Subsequently Mr. Taylor, .the indorser on the four thousand dollars note, learned of IT. L. Eoss ’ conversion of the note and paid the said note, which had passed into the hands of bona-fide purchasers, in order to protect his credit, and then went to the holder of the note above set out, and caused it to be transferred to him, paying therefor the balance of eighty dollars. The transfer was without recourse and after the maturity of the note. Thereupon notice was given W. L. Eoss and Smith.(H. L. Eoss having absconded) that the note for one thousand two hundred dollars had been paid out of the funds derived from such note, and payment of the one thousand two hundred eighty dollars was demanded and payment refused, and suit brought. The demand was some ninety days after the maturity of the note signed by W. L. Eoss and Smith.

. Section 63 of the Negotiable Instrument Law (Laws 1916, chapter 244; Hemingway’s Code, section 2641) reads as follows:

“A person placing his signature upon an instrument otherwise than as maker, drawer, or acceptor, is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.”

Under the terms of this act, as construed in most of the decisions of the country, W. L. Ross and Smith are made indorsers, with the right of indorsers. See authorities set out under section 63 of the act in question. Brannan’s Negotiable Instrument Law (3d Ed.) pp. 232 to 236, inclusive. See, also, Mechanics’ & Farmers’ Savings Bank v. Katterjohn, 137 Ky. 427, 125 S. W. 1071, Am. Cas. 1912A, 439.

The chancellor found that the want of notice must be pleaded by the defendants, and that they had pleaded and proven the defense under this section. The original bill alleged that W. L. Ross and Smith were joint makers and not indorsers, which the answer denies. We think the chancellor was right in holding that the want of notice-was a matter of defense, to be pleaded and proven by the defendant, and that, on the facts found on the hearing, his judgment discharging W. L. Ross and Smith as indorsers, because of the failure to give them notice of the failure to pay the note at maturity, is correct. It is insisted in opposition to this view that one thousand two hundred dollars of the-note was actually paid, and that the chancellor’s petition as to the eighty dollars would be correct. It would be the duty of Mr. Taylor to learn with reasonable dispatch what became of the note indorsed to H. L. Ross, and to take seasonable action to protect his interest, and that ninety days was too late. It is highly important that the decisions of all courts construing the Uniform Negotiable Instrument Law be harmonious and to conform to the decisions of other states passing upon this phase of the law requires the chancellor’s judgment be affirmed.

Affirmed.