Divelbiss v. Jones

• Decision Date: 14 November 1932
• Docket Number: 30234
• Citation: 164 Miss. 111,144 So. 464
• Court: Mississippi Supreme Court
• Parties: DIVELBISS v. JONES et al

144 So. 464

164 Miss. 111

DIVELBISS v. JONES et al

No. 30234

Supreme Court of Mississippi

November 14, 1932

Division A

1 EVIDENCE.

Indorsement stating payee "sold all my right, title, and interest" in note held plain and unambiguous; hence parol evidence that indorsement was intended to be without recourse was inadmissible.

2 EVIDENCE.

Ordinarily in court of law, legal effect of instrument cannot be varied by parol.

3. APPEAL AND ERROR.

In action on note, amount of attorney's fee held, for jury, precluding Supreme Court from rendering final judgment, notwithstanding amount due on note was fixed.

HON. J. I. STURDIVANT, Judge.

APPEAL from circuit court of Lowndes county, HON. J. I. STURDIVANT, Judge.

Action by L. B. Divelbiss against E. S. Jones and another. From the judgment, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Loving & Loving, of Columbus, for appellant.

The indorsement in this case is a general indorsement in due course.

Divelbiss v. Burns, 161 Miss. 724, 138 So. 346.

A written indorsement was necessary on this instrument, it being payable to order and not a bearer paper, and the contract of indorsement on the back thereof must prevail, and until delivered and accepted there was no contract, and when delivered and accepted the written contract become necessarily the sole depository of all terms of the agreements up to that time, excluding all prior negotiations or contemporaneous oral agreements; and all testimony relating to the oral agreement, which varied or changed in any way the terms of the written contract of assignment or indorsement, was and should have been excluded by the court.

Red Snapper Sauce Co. v. Bolling, 95 Miss. 752, 50 So. 401.

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.

Section 2719, Code 1930.

This cause should be reversed and rendered for the amount of the note together with interest thereon at the rate of the per cent per annum from 27th day of July, 1930, together with the uncontradicted amount of reasonably attorney fees.

W. L. Sims, of Columbus, for appellees.

This endorsement is a qualified endorsement and both the appellant and appellee knew it was at the time of the trade and delivery of the note and mortgage, as the testimony shows beyond a doubt that the appellee told the appellant that he was trading the paper outright and without any further obligation on his part.

The appellant from his own testimony admits that the deal was an outright sale of the paper.

OPINION

Smith, C. J.

The appellant sued Burns, the maker of, and Jones, an indorser on, a promissory note. The note was executed by Burns to Jones, and transferred by Jones to the appellant by the indorsement on the back thereof, reading as follows: "This is to certify that I have this day sold all my right, title and interest, to the within note and mortgage to L. B. Divelbiss, as part payment on radio." The appellees' contention is that this indorsement was intended to be "without recourse," and therefore he is not liable thereon.

This is the second appearance of the case in this court. On the former appeal, Divelbiss v. Burns, 161 Miss. 724 138 So. 346, the indorsement was held to be a general, and not a qualified, indorsement. When the case was...