Byers v. McDonald

• Decision Date: 20 March 1911
• Docket Number: 14,173
• Citation: 54 So. 664,99 Miss. 42
• Court: Mississippi Supreme Court
• Parties: JAS. J. BYERS ET. AL. v. W. E. McDONALD

54 So. 664

99 Miss. 42

JAS. J. BYERS ET. AL. v. W. E. McDONALD

No. 14,173

Supreme Court of Mississippi

March 20, 1911

APPEAL from the circuit court of Harrison county, HON.W. H. HARDY Judge.

Suit by Jas. J. Byers et al. against W. E. McDonald. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Dodds &amp Leathers, for appellant.

We respectfully submit and insist that the grounds set out by appellee in his motion for the peremptory instruction granted in this case, are wholly insufficient to support said motion under the law controlling this case.

The first ground of said motion is as follows to-wit "Because the suit was instituted before the plaintiffs had any patent right to convey."

We submit that a sufficient and complete answer to this ground of said motion is the terms of the contract, as a part consideration for which the note sued on in this case was given.

It will be noted that this is not a suit on said contract, but is a suit on the last one of the five hundred dollar notes which was given as a part consideration for said contract. By the terms of the contract, the note sued on in this case matured six months from its date, and of course it is elementary and beyond the pale of argument, that a cause of action accruing to the owners of said note, when the maker of it made default in the payment of said note at its maturity, and according to its terms. In this case, the note matured six months after its date and as it was not paid at its maturity, we take it that it is certainly true that the owners of it had a right to bring suit to enforce the collection of it, as soon as default had been made by appellee in making payment of it.

The second and last ground set up by appellee in his said motion for a peremptory instruction which was granted him by the court below, is in the following language, to-wit:

"Because under the agreement, it was the duty of the plaintiff to tender to defendant a conveyance to the patent to be used in Harrison county, and this the plaintiff has failed to do, and there was evidence introduced to show that said patent was never tendered by the plaintiff to the defendant."

The sole reason why plaintiffs did not tender a conveyance of said patent to Harrison county, to the appellee, is as the evidence in this record discloses, that appellee notified appellant Davis, in writing, that he, the appellee, would not abide by said agreement, and that he would not receive, or accept the conveyance for said patent, if the same was tendered to him.

"A tender is not necessary, where it appears that if made it would have been fruitless." See Am. and Eng. Law, vol. 128, pages 5, 6, 7, 8. See especially Vol. 28, page 7, sec. 2, and authorities cited thereunder.

As to the testimony in this record touching the material points of this case, we submit that a casual reading of the record will disclose the fact, that almost every material point in the case is controverted, and that the record is full of conflicting testimony on all of said points, and therefore it was a case for the jury.

OPINION

ANDERSON, J.

Appellants, J. J. Byers, W. A. Davis, and F. W. Bell, sued appellee on a promissory note for five hundred dollars, executed by the latter to appellants. After the testimony for both the appellants and appellee was in, the court instructed the jury to return a verdict for appellee, which was done, and judgment entered accordingly, from which appellants prosecute this appeal.

The facts necessary to be stated are: Appellants had applied for a patent for a certain device for treating shingles to preserve them. Appellee bought the right from appellants, to sell this patent, when procured, in Harrison county, agreeing to pay therefor one thousand dollars, for which he...