Hart v. Taylor

• Court: Mississippi Supreme Court
• Writing for the Court: COOPER, J.
• Citation: Hart v. Taylor, 12 So. 553, 70 Miss. 655 (Miss. 1893)
• Decision Date: 13 March 1893
• Parties: J. & B. HART v. H. M. TAYLOR

12 So. 553

70 Miss. 655

J. & B. HART v. H. M. TAYLOR

Supreme Court of Mississippi

March 13, 1893

FROM the circuit court of the first district of Hinds county, HON J. B. CHRISMAN, Judge.

The opinion states the case.

Affirmed.

Calhoon & Green, for appellant.

1. The bond is to Millsaps College, or bearer, to pay the college or its assigns. The college does not sue, and is not the bearer. It never assigned, and the bearer had no cause of action. Only the college or the bearer could sue, and the bearer could not sue until there was neglect or refusal to pay the college or its assigns. This is too plain for construction. This, as we submit, alone settles the case, and necessitates reversal.

2. But the bond, being conditioned on the performance of services was never under the operation of the law merchant, and is not in the contemplation of its rule that failure of consideration could not be set up against negotiable paper. Shackleford v. Franks, 25 Miss. 49. The contract being with bearer to pay the college, or the assigns of the college, contingent on location of the college, leaves open all defenses between the obligors and the college. The bearer could not set up any higher right to defeat equities than the college or its assigns could, for the payment was to be to them, and not the bearer.

Nugent & Mc Willie, for appellee.

The appellants would put upon the word "assigns" a limitation not warranted by any thing in the instrument sued on or the accepted meaning of the word. Assigns are "persons to whom property has been transferred." In some cases the transfer must be made by deed; in others, any writing signed or words spoken by the assignor, showing the intention to transfer, is sufficient; in others, mere indorsement is effectual; and again, as in obligations payable to bearer, mere delivery invests the assignee with all the rights of the original holder or owner.

The obligation in suit is one payable to bearer, nor is it any the less such because of the use of the alternative expression, "Millsaps College, or bearer." The word "assigns," subsequently employed, is referable to any one who, receiving it from the college, might become the bearer. Every subsequent bearer was the assignee of the college within the meaning of the word as employed in the particular writing, and also as defined and used by law writers. Burrill on Assignments (2d ed.), 1, note 1; Daniel on Neg. Inst., § 729, p. 585; Rapalje & L. Law Dic vol. 1, 87, 89.

The appellants are also mistaken in their view of the case, when they seek to apply the rule that the obligation, being for services, is not under the operation of the law merchant, and that, the liability being contingent upon the location of the college, the defendants could avail of all defenses based on failure of consideration, etc. The obligation sought to be enforced, so far as concerns the defendants, is one for the payment of money, and not, as in Shakleford v. Franks, for the performance of services. The college being located by the other party to the contract, the defendants owed a specific sum of money that was not payable in services, or any thing except legal tender currency.

Again, the location of the college was not the burden assumed by defendants, and the alleged failure of consideration involved other matters entirely disconnected with such location. The pleas, referred to as setting up an alleged failure of consideration, did not really aver any failure of consideration. The consideration is expressed in the instrument sued on, and shown to be the permanent location of the college in Jackson or its vicinity, and the allegations of the declaration on that head are not controverted.

OPINION

COOPER, J.

This action was brought by the appellee in his own name, upon the following writing:

THE STATE OF MISSISSIPPI, Hinds County. Know all men by these presents:

That we are held and firmly bound unto Millsaps College, or bearer, in the sum of five hundred dollars, to be paid at the following dates: $ 250 July 1, 1891; $ 125 October 1, 1891; $ 125 January 1, 1892; to said Millsaps College, or its assigns, for the payment whereof I bind myself, my heirs and assigns, by these presents. Witness my signature, this tenth day of March, A.D. 1891.

"The condition of this obligation is as follows: By an act of the legislature of the state of Mississippi, entitled 'An act to incorporate Millsaps College, and for other purposes,' approved February 21, 1890, the trustees of said college were authorized to select a place at which to locate the said college, and to receive donations from any city, town or individual. Now, if said trustees select Jackson, Hinds county, or its immediate vicinity, to be the permanent site of the college, I agree, in consideration thereof, and of the benefits, direct and indirect, to me therefrom, that this obligation shall be in full force and effect; otherwise to be void.

"J. & B. HART."

The plaintiff avers that the defendants delivered said writing to the trustees of Millsaps College, who, afterwards, selected the immediate vicinity of the city of Jackson as the permanent site of Millsaps College, and thereafter transferred and delivered said writing to plaintiff for a valuable consideration. The defendants, inter alia, pleaded that the writing sued on had never been assigned in writing to the plaintiffs, which plea was, upon motion of the plaintiff, taken from the files, because presenting a feigned and immaterial issue.

The defendants' fifth plea is as follows: "For a fifth plea to the declaration herein, the defendants, by their attorneys, say that the said instrument of writing sued on is payable, by its terms, to Millsaps College or its assignee, and was obtained by misrepresentation, in this, that said Millsaps College assured said defendants that they were to be one...