Virginia-Carolina Chemical Co. v. Steen, 55 So. 47

Virginia-Carolina Chemical Co. v. Steen

55 So. 47 | Miss. | 1911

Lead Opinion

Anderson, J.,

delivered the opinion of the court.

• Appellant, the Virginia Carolina Chemical Company, sued appellee, W. T. Steen, on a promissory note for two hundred and five dollars. There was a judgment in the court below for appellee, from which appellant appeals.

The controlling facts in the case, which are undisputed, are as follows: The appellee, who resided in Alcorn county, on May 17, 1907, executed his promissory note to appellant for two hundred and five dollars, due November 1, 1907, with interest from maturity at the rate of eight per cent, per annum, payable at the State National Bank in Memphis, Tennessee, in which city appellant had an office through which it conducted its business for the territory of which Northern Mississippi is a part. A short time before the note became due, at the request of appellee, who did his banking business with the Tishomingo Savings Institution, at Corinth, in Alcorn county, the appellant forwarded the note to that bank for collection, and appellee was notified to that effect. After the note became due the appellee turned over to the Tishomingo Savings Institution a sufficient amount of money to pay the note, and on doing so received from the bank his note. Without having forwarded the collection thus made to the appellant, the Tishomingo Savings Institu*509tion failed in business, and appellant has never received from it the money so paid. Appellant thereupon brought this suit on the note, claiming that the payment made by appellee to the Tishomingo Savings Institution did not discharge the note; that in the collection of the note that bank-was acting as the agent of appellee, and not of appellant. On the other hand, appellee contends that, under the facts stated, the payment by him to the Tishomingo Savings Institution was a payment to the agent of appellant, and therefore discharged the note. The court below refused, at the request of appellant, to instruct the jury to return a verdict in its favor, and this action of the court is assigned as error.

The question in the case is whether, in making collection of this note, the Tishomingo Savings Institution acted as the agent of appellee or of appellant; for it is undoubtedly the law that if it acted as the agent of the latter the note has been paid, and if of the former it has not been paid. By the terms of the note it was payable to the appellant at the State National Bank in the city of Memphis. By virtue of this stipulation in the contract the appellee agreed to pay the note there, and not- somewhere- else, and appellant was entitled to have payment made there, and not at some other place. For the convenience of appellee alone, and at his request, the note was forwarded to the Tishomingo Savings Institution for collection. In so forwarding the note for collection, appellant was serving the interest of appellee, and not its -own. There was no advantage or consideration moving to appellant which induced it to so .forward the note for collection. There was no reason why appellant should waive the stipulation in the note providing for its payment in Memphis. It is true appellant, at the request of appellee, trusted the Tishomingo Savings Institution with the custody of the note, and authorized its delivery to appellee when paid; but, looking through the form to the meaning of the transaction, such pay*510ment and delivery up of the note was not to be absolute until the money was paid to the appellant at the stipulated place of payment in the city of Memphis. Taking the whole transaction, it amounts to this: Appellee contracted to pay the note at i.he State National Bank at Memphis; but for the convenience of appellee, at his request, the note was forwarded to the Tishomingo Savings Institution, as the agent of appellee, to receive from him the amount due on the note and forward the money to appellant at the place of payment in the city of Memphis provided for in the note. The appellant did not waive its right to have, the note paid there. It was not asked to waive this right. It had no interest to serve by waiving the same. Appellant only acquiesced in appellee’s selection of the Tishomingo Savings Institution as his agent to receive the amount due on the note and forward same for him. Such acquiescence did not constitute the bank so making, the collection the agent of the appellant.

On account of the insolvency of the Tishomingo Savings Institution, one or the other of the parties to this suit must lose the amount of this note. Shall it be the 'appellant, whose only fault was in trying to accommodate the appellee, if that may be called a fault; or shall it be the appellee, who, for the purpose alone of serving his own ends, was the cause of the selection of the unfaithful agent? We answer, the latter. It follows, from these views, that the peremptory instruction requested on behalf of appellant should have been given.

Reversed and' remanded.

Dissenting Opinion

Smith, J.

(dissenting). I think that the Tishomingo Savings Institution was constituted, by appellant, its agent in the collection of • the note and, consequently, appelle was discharged when he paid the amount due on this note to the Tishomingo Savings Institution. It is true that appellant appointed the Tishomingo Sav*511ings Institution its agent at the request of appellee, hut as no fraud or deceit on the part of appellee was shown, this fact cannot, in my judgment, alter the situation of the parties.