Ivy v. Evans

• Decision Date: 02 July 1923
• Docket Number: 23370
• Citation: 132 Miss. 652,97 So. 194
• Court: Mississippi Supreme Court
• Parties: IVY v. EVANS et al

97 So. 194

132 Miss. 652

IVY v. EVANS et al

No. 23370

Supreme Court of Mississippi

July 2, 1923

Division B

Suggestion of Error Overruled, July 28, 1923.

APPEAL from circuit court of Noxubee county, HON. THOS. B. CARROLL Judge.

Suit by G. C. Ivy, temporary administrator of the estate of H. H Young, deceased, against Isham Evans and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

Wells, Stevens, & Jones, for appellant.

The so-called plea of tender was in fact nothing more than a renewal of the plea in bar set forth in the first special plea. 14 Ency. of Pleading and Practice, page 654; Lyons v. Williamson, 27 Me. 152; Greeley v. Whitehead, 35 Fla. 523.

Parol evidence is inadmissible to vary the time or mode of payment of a promissory note. 1 Williston on Contracts, par. 221; Miner v. Michie, Walker 24; Ovett Land & Lumber Co. v. Wimberly, 68 So. 855; Smith v. Elder, 7 S. & M. 507; Pack v. Thomas, 13 S. & M. 11; Kerr v. Kuykendall, 44 Miss. 137; Wren v. Hoffman, 41 Miss. 616; Patrick v. Petty, 83 Ala. 420; Tuscalusa Cotton Seed Oil Co. v. Perry, 85 Ala. 158, at page 167; McDonald v. Elfes, 61 Ind. 279; Borden v. Pea, Receiver, 20 Ark. 293; Clark v. Hart, 49 Ala. 86; Story on Promissory Notes, notes on page 336; Hoare et al. v. Graham et al., 3 Camp. 57; 3 R. C. L., par. 98; 1 L. R. A. 816; Greenleaf On Evidence (16 Ed.), par. 275.

The written declaration of Mr. H. H. Young, deceased, "Exhibit A" is a voluntary option or unilateral contract without consideration and revocable at will. Williston On Contracts, 55, 58, 60, 60, b, 61, 103 e; Levin v. Dietz, 20 L. R. A. (N. S.) 251; Coldblast Transportation Co. v. Kansas City Bolt & Nut Co., 11 F. 77, 57 L. R. A. 696; Harrison v. Cage, 5 Mod. 4118. Other authorities are cited in 1 Williston On Contracts, note 72, page 214; Comstock v. North, 88 Miss. 754; Kolb v. Bennett Land Co., 74 Miss. 567; 3 Pomeroy, section 1405 and note; Brown Bros. Lbr. Co. v. Preston Mill Co., 83 Wash. 648, 145 P. 964; Meyer v. Meyer, 106 Miss. 638.

The unilateral offer, Exhibit "A" was terminated by the death of Mr. Young. It is well settled that any unilateral or revocable offer of this nature is revoked by death. 1 Williston on Contracts, par. 62. A subscription contract is revoked by the death of the promisor before it has been accepted and acted upon. Wallace v. Townsend, 43 Ohio State, 54 Am. Rep. 829; Grand Lodge I. O. G. T. v. Farnham, 70 Cal. 158; Foust v. Board of Publication, 8 Lea 552; Pratt v. Trustees of Baptist Soc. of Elgin, 93 Ill. 475, and 34 Am. Rep. 187; Helfenstein's Estate, 77 Pa. 328, 18 Am. Rep. 449; Twenty-Third Street Baptist Church v. Cornwell, 6 L. R. A. 807, note; Phipps v. Jones (Pa.), 59 Am. Dec. 708; Jordan v. Dobbins, 122 Mass. 168; Browne v. McDonald, Executor, 129 Mass. 66; Wallace v. Townsend, 43 Ohio State, 537. Neither an administrator nor an executor is authorized to make new contracts for the deceased and may not execute commercial paper in a way to bind the estate. Endorsements and transfers affecting liability cannot be made after the death of a party to a note or bill. Bromage v. Lloyd, 1 Exch. 32, 5 Dowe. & L. 123, 162 L. J. Exch. 257; Bank of Washington v. Pierson, 2 Cranch. C. C. 685; Mich. State Bank of Leavenworth's Estate, 28 Vt. 209. A power of attorney to demand payment on a note is determined by the death of the principal. Gal. v. Tappan, 12 N.H. 145, 37 Am. Dec. 194. The retainer as an attorney is determined by the death of his client. Whitehead v. Lord, 7 Exch. 691, 21 L. J. Exch. 239. In 49 L. R. A. (N. S.) 1008, will be found a case note on "death of principal" as revoking the power of an agent to sell real estate. See Luckett v. Briskell, 115 Miss. 457.

The burden was upon appellees to show a consideration and none has been shown. 8 C. J., par. (1215) 8, page 929; Wynne et al. v. Colorado Springs Co., 3 Colo. 155; Sostello v. Wilhelm, 13 Kan. 229; 1 Williston on Contracts, 104, 107; Bowman v. Citizens National Bank (Ind.), 56 N.E. 39.

The written proposal, Exhibit "A," became merged in and a part of the subsequent promissory note sued on. Appellees, as makers of the note sued on, are bound by the promissory note as written. It is certain as to parties, as to the amount and as to time. These are fundamental requirements of every negotiable instrument. Any prior understanding becomes merged in the writing evidencing the note. 1 Williston on Contracts, 434, 435, 138 d, par. 723.

Assuming for argument that the written letter, "Exhibit A," is a valid and enforceable contract, the same could not be plead in bar to this action upon the promissory note. Where a written collateral agreement is given along with or in connection with a promissory note and there is an action upon the note, the written collateral agreement, although breached, constitutes no bar to the action on the note, but the defendant is remitted to a separate action for damages. Dow v. Tuttle, 4 Mass. 414; Bond v. Worley, 26 Mo. 253; Hawes v. Mulholland, 78 Mo.App. 493; Bircher v. Payne, 7 Mo. 462; Atwood v. Lewis, 6 Mo. 392; Kennedy v. Gibson, 68 Kan. 612; Gorrell v. Home Life Ins. Co., of New York, 63 F. 371; Lane v. Manning, 8 Yerger (Tenn.), 435; Goddard v. Cutts, 11 Maine, 440; Shed v. Pierce, 17 Mass. 622; Garnier v. Papin, 30 Mo. 243; Randolph on Commercial Paper (2 Ed.), par. 1816; Nelson v. White, 61 Ind. 139; Porter v. Pierce, 55 Am. Dec. (N. H.) 151.

Upon an examination of the authorities the court will find that under the common law there could be a covenant not to sue or a covenant to forbear, given upon a good and valid consideration, and that if this covenant was in favor of all the parties jointly and severally liable upon a promissory note or bill of exchange, then the covenant not to sue could be plead in bar of the action, such a covenant amounting to an absolute release of liability or a full settlement. But a covenant to forbear is impossible when there is no commercial paper in existence. And even a covenant to forbear cannot be plead in bar where it does not run in favor of all the parties jointly and severally liable.

The testimony shows that the notes executed by appellees for borrowed money were by mutual consent renewed annually and therefore renewed more than one time and that the terms of the option contract, Exhibit "A," have been waived.

The facts show that the offer relied on was made under such circumstances that it would be inequitable to enforce it.

Furthermore, the death of Mrs. Nunn revoked the option relied upon. 1 Williston on Contracts, par. 2, says: "It is generally held that the death of the offeror or offeree terminates the offer." See Sutherland v. Parkins, 75 Ill. 338; Mactier's Administrators v. Frith, 6 Wendell, 21 Am. Dec. 262; Newton v. Newton, 11 R. I. 390, 13 C. J. 298; Bank of Port Gibson v. Baugh, 9 S. & M. 290. The partnership of E. F. Nunn & Company has been destroyed by the death of the security contemplated by the written option is gone forever.

An offer has been held to lapse where one of the parties becomes bankrupt. Meymell v. Surtees, 1 Jur. (N. S.) 737. An offer made to a partnership is terminated by dissolution of the partnership. Goodspeed v. Wiard Plow Company (Mich.), 7 N.W. 902. See also Robertshaw v. Hanway, 52 Miss. 713.

We press the point that the death of Mrs. Nunn and the bankruptcy of Isham Evans operates to revoke the option. We respectfully submit that this point is a complete defense and necessitates a reversal of the case and judgment here for the appellant.

W. G. Roberds also for appellants.

I. The letter of February 21, 1916, is a nudum pactum. 1. It is without consideration: a. Nothing given for it when executed: (1) It expressly states it was written at the request of appellees. (2) Its wording shows nothing paid at the time. (3) The testimony (pages 106-108) is that nothing was paid. Newman v. Supreme Lodge K. of P., 110 Miss. 371, 70 So. 241. b. The letter was not a benefit to promisor, Young, nor a detriment to promisee, Evans. c. The court below found as a fact there was no consideration: "There was no consideration for the agreement," (page 125). (a.) Necessity of consideration: 13 C. J., 312; 6 R. C. L. 649-650 and authorities cited under sub-head 7; Am. & Eng. Enc. Law (2 Ed.), 673; 21 Am. & Eng. Enc. Law (2 Ed.), 926; Davis v. Morgan, 97 A. S. R. 171 Ga. 61 L. R. A. 148; Smith v. Bangham, 28 L. R. A. (N. S.) 522 (Cal.); Cohaba Coal Co. v. Veitch (Ala.), 65 So. 75; 1 Parsons on Contracts (6 Ed.), 427; Note 21 L. R. A. 129; Smith v. Cauther (Miss.), 54 So. 844; Stiger v. Jaap, 83 Miss. 351; Comstock v. North, 88 Miss. 755; Kolb v. Bennett Land Co., 74 Miss. 567; Davis v. Stout (Ind.), 27 Am. St. Rep. 565; Williams v. Grocery Co. (Fla.), 75 So. 523.

2. There is no mutuality of obligation--it is unilateral: a Appellees made no promise and assumed no obligation. (1) Appellees could not have been forced to do anything. (a) Mutuality of obligation essential in absence of other consideration: 6 Am. & Eng. Enc. Law (2 Ed.), 727; 6 R. C. L. 686-687-688; 6 R. C. L. 677-692; Alabama City G. & A. Railway Co. v. Kyle, 81 So. 60 (Ala.); Collins v. Smith, 43 So. 838 (Ala.); Collins v. Abel, 44 So. 109 (Ala.), 125 Am. St. Rep. 24; McGowin Lumber & Export Co. v. Camp Lumber Co., 68 So. 263 (Ala.); Eldorado Ice & Planing Co. v. Kinard, 131 S.W. 460 (Ark.); Hauser v. Hobart, 40 L. R. A. (N. S.) 410 (Pa.); Citizens National Life Ins. Co. v. Murphy, 156 S.W. 1069 (Ky.); Rehmzeiher Co. v. Walker Co., 160 S.W. 777 (Ky.); Levin v. Deitz, 87 N.E. 454, (N. Y.) 20 L. R. A. (N. S. ) 251; Rogers v. Larrimore & Perkins, 222 S.W. 512 (Ky.); Pope v. Thompson, 177 N.W. 607 (Wis.); Reynolds v. Louisville, etc., Ry. Co., 40 N.E. 410 (Ind.); ...