46 Miss. 635 | Miss. | 1872
E. 0. Adams, administrator of 0. N. McMillan, deceased, instituted in 1866 in the circuit court of Franklin county a suit against C. E. McMillan and Isaac W. Collins, upon a written contract, whereby, on the 14th day of March, 1866, the defendants made and delivered to W. M. Wentworth, then administrator of the estate of said C. N. Me Millan, deceased, their certain written promise to deliver to said
“Meadville, March 14, 1866.
“ On or before the first day of November next, we or either of us promise to pay W. M. Wentworth, administrator of the estate of C. N. McMillan, deceased, the amount of five bales of good lint cotton or its present value in money.
(Signed) 0. E. McMillan,
Isaac Collins.”
“I. W. Collins & 0. E.'McMillan,
To W. M. Wentworth,
Admr. of estate of C. N. McMillan, deceased, Dr.
March 14, 1866. To five bales good lint cotton at $300 per bale, $1,'500.”
To both counts of the declaration, the defendants interposed a general denial at the return term. Thereafter, and at the September term, 1869, of the said court, the substitution of C. N. Waterbury, as administrator of the estate aforesaid in place of E. C. Adams, was suggested by the attorney for plaintiff, and leave was asked to revive the suit in the name of said C. N. Waterbury, which was granted, and the suit ordered revived and to proceed in his name. A motion by defendants to dismiss the suit on the ground that the suit had abated as to the plaintiff Adams, and had not been revived in the name of said Waterbury, was overruled. Subsequently, and at the December term, 1870, the defendants filed a further plea, in effect, a plea puis darrein
It appears from the bill of exceptions, that upon the trial the plaintiff offered in evidence the contract, a copy of which has been given, and the same having no United States revenue stamp, the plaintiff at the same time offered to prove the execution of the contract, and that the absence of a revenue stamp upon said contract was accidental and not with a view to defraud the government or evade the law; but the defendants objected to said contract as evidence, and-the same was excluded by the court.
The plaintiff then offered to affix to said contract the requisite amount of United States revenue stamps in open court, and to prove that the absence of stamps was accidental ; but to this the defendants also objected and permission to affix the stamps was refused.
The plaintiff then offered to introduce evidence to estab • lish the account filed with the declaration, and called as a witness W. M. Wentworth, former administrator of the estate of McMillan, deceased, who, being sworn, testified, that the cotton embraced in the account was the same included in the written contract, whereupon the defendants objected to any further testimony to establish the account, on the ground that a promise to pay for the same had been
There being no further testimony, the case was thus submitted to the jury, who returned a verdict for defendants.
A motion for a new trial was made on the following grounds: 1st. The verdict is claimed to be contrary to law and evidence; 2d. The exclusion of the written contract and refusal to allow the same in evidence on account of the absence of a stamp; 3d. The exclusion of parol evidence to establish the account filed with the declaration. Which motion was overruled and judgment final was awarded upon the verdict, whereupon the plaintiff prayed out a writ of error, and alleges the following as errors of the court below: 1st. The rejection of the written contract; 2d. In refusing evidence to prove the account; 3d. diving judgment with the demurrer undisposed of; 4th. Overruling the motion for a new trial.
The court, in refusing to receive the written contract in evidence, and to permit it to be stamped at the trial, disregarded the uniform decisions of this court, as well as those of the courts of other states of the highest authority. Notes • not stamped in accordance with the United States revenue laws may, in the absence of fraud, be stamped at the trial, and then given in evidence. Mere failure to stamp is not evidence of intention to evade the revenue laws. The objector must show fraudulent intent. Morris v. McMorris, 44 Miss. 441; Acts of Cong. 1866; 39 Vt. 412; 97 Mass. 150; 5 Barb. 320; 40 Ala. 470; 55 Me. 145.
It is an elementary doctrine, that, if a note or other promise in writing be invalid for want of a stamp or other like cause, and not evidence of a contract for that reason, then the plaintiff can recover upon the consideration of the note or promise for goods sold and delivered, or otherwise. Chitty on Bills, 144; Greenlf. Ev., § 436; Humphreys v. Wilson, 43 Miss. 328; 40 Vt. 179; 40 Ill. 362; ib. 457; 24 Iowa.
It was held in Harper v. Bondurant, 7 Smedes & Marsh. 397,
For the rule above referred to, that demurrers to pleas should be disposed of before proceeding to trial and judgment upon issues to the country, there exist the most cogent reasons. Among these are the rights of parties litigant, as affected by the details of judicial proceedings, and hence the value of disposing by the record of all the issues presented therein; of adjudicating all the questions, the omission of which would tend to render the judgment uncertain in its results, and the necessity of uniformity and regularity as a protection of the rights of persons and property. The propriety of this rule may be made more apparent, perhaps, by reference to authorities upon a question underlying the actual point before the dourt. In this case the plea demurred to was filed puis darrein continuance and by leave of the court. Whether the party did in fact waive his former pleas, and risk his case upon the plea last pleaded, or so intended at the time of filing the latter, is not shown or claimed, and is negatived by the trial of the issues made upon the first pleas. Neither is any point raised directly upon the legal effect of the plea puis darrein continuance, upon the prior pleas. These points not having been presented or passed upon in the court
“Asa general rule, apleajpw darrein continuance is a waiver of the former pleading. 1 Ld. Raym. 693; 1 Salk. 178. And the case then stands in the same state as if this had been the plea originally put in. Also, if this be even a plea in abatement, if the original plea have been a plea in bar, the judgment or demurrer, as well as on verdict, will be peremptory, quod recuperet, and not respondeat ouster. Grilb. C. P. 105; Freem. 252. This rule, however, proceeds on the hypothesis that the party assumes a new ground of defense to the action, abandoning the defense before relied on, and does not apply where the matter set up affects only the remedy and not the right of the plaintiff. Thus, a plea
A plea of this kind, in abatement, begins and concludes like a plea of the same kind, when pleaded in the first instance; but when pleaded in bar, it begins with saying that the plaintiff ought not further to maintain his action ; and concludes by praying judgment, if the plaintiff ought further to maintain his action. ” In 1 Chitty on Pl. 658, these rules are thus stated: ‘ ‘ PleaS of this kind are either in abatement or in bar. If any thing happen pending the suit which would in effect abate it, this might have been pleaded puis darrein continuance, though there has been a plea in bar; because the latter plea only waives such matters in abatement as existed at the time of pleading, and not matter which arose afterward; but, if matter in abatement be pleaded puis darrein continuance, the judgment, if against the defendant, will be peremptory, as well on demurrer as on trial. A plea puis darrein continuance is not a departure from, but is a waiver of the first plea, and no advantage can afterward be taken of it, nor can the plaintiff afterward proceed thereon.” Another authority says, ££It seems dangerous to plead any matter puis darrein continuance,
Referring to the case of Rayner & Hope v. Dyett, cited supra, the court in Morris v. Cook, 19 Wend. 699, say, “It is supposed by the plaintiff’s counsel that a plea puis, etc., is a waiver of all previous pleas, whether it be interposed to the whole or any part of the plaintiff’s action. The rule is, perhaps, universal where the plea goes to the whole sub
With reference to the rules above mentioned, see, also, 14 Mass. 295; 3 N. H. 102; 7 Bac. Abr. 785, 789; Tidd’s Pr. 847, and notes; 5 Pet. 231. These references will suffice for the purpose indicated. They show that, beyond the mere neglect to dispose of the demurrer, the parties are environed with important questions, from which they should have been relieved by the action of the court.
All the errors in this case are well assigned, wherefore the judgment is reversed and the cause remanded.