Jeffery v. Jeffery

• Decision Date: 31 March 1930
• Docket Number: 28481
• Citation: 127 So. 296,157 Miss. 187
• Court: Mississippi Supreme Court
• Parties: JEFFERY v. JEFFERY

127 So. 296

157 Miss. 187

JEFFERY v. JEFFERY

No. 28481

Supreme Court of Mississippi

March 31, 1930

Division B

Suggestion of Error Overruled, May 19, 1930.

APPEAL from chancery court of Bolivar county, Second district HON R. E. JACKSON, Chancellor.

Suit by J. H. Jeffery against Mrs. Hester A. Jeffery and another. Judgment for complainant, and named defendant appeals. Affirmed.

Judgment affirmed.

Shands, Elmore & Causey, of Cleveland, for appellant.

In the case at bar, there was no consideration whatever moving to Mrs. Jeffery, but the only reason for her signing, as given to her by Mr. Jeffery was that he could not use the note as collateral with the bank, unless it had two signatures, and Mrs. Jeffery testified that she signed the note for the sole purpose of enabling him to borrow money against it at the bank.

Parol evidence is always admissible to show the absence or failure of consideration.

Rylee v. Wilkinson, 134 Miss. 633.

Parol evidence is admissible to show whether a party is an accommodation party, and also to determine which party he accommodated.

Haddock-Blanchard Co. v. Haddock, 85 N.E. 682; Schlamp v. Manaval, 190 S.W. 658; State Bank v. Pangre, 165 N.W. 479.

It is well established that the accommodated party cannot sue the accommodation party.

Section 29, Negotiable Instrument Act; Cox v. Heagy, 184 S.W. 494; Morris County Brick Co. v. Austin, 75 A. 550; Ladd v. Ardmore State Bank, 143 P. 170.

An accommodation party is one who has signed the instrument as maker, drawer, acceptor or endorser, without receiving value therefor, and for the purpose of lending his name to some other person.

Somerville & Somerville, of Cleveland, for appellee.

Who is accommodated party is question of fact for jury.

Lyons v. Westwater, 181 F. 681.

The appellee is not the accommodated party.

Bank v. Rhodes, 107 Neb. 223, 185 N.W. 421, 20 A.L.R. 412; Farmers Nat. Bank v. Ohmen et al., 199 N.W. 802; First Nat. Bank of Elgin v. Bach et al., 193 P. 1041; Golden City Banking Co. v. Morrow, 170 S.W. 448; Nalitzky v. Williams, 237 F. 802; Neal v. Wilson, 213 Mass. 336, 100 N.E. 544.

Agreement not to sue is merely an executory promise and not binding on plaintiff.

Herndon v. Henderson, 41 Miss. 584; Sims v. Kline, 139 Miss. 246, 104 So. 85.

The fact that Yale Jeffery was adjudged a bankrupt makes no difference in this case; waived by execution of new note.

Bush v. Stanley, 13 N.E. 248, 253; 1 Collier on Bankruptcy (13 Ed.), 642-6; Fleitman v. Ashley, 172 N.Y. 628, 65 N.E. 1116, 60 A.D. 201, 69 N.Y.S. 1099; Mallin v. Wenham, 70 N.E. 564, 65 L.R.A. 602; McDonald, etc. v. Randall et al., 72 P. 997-9.

Appellant signed note for valuable consideration; release of daughter-in-law from old note of like amount, and is not an accommodation party at all.

Holm v. Sandberg, 32 Minn. 427, 21 N.W. 416; Isrig v. Franklin Nat. Bank, 53 Ind.App. 217, 101 N.E. 398; Schaffter v. Irwin, 139 La. 92, 71 So. 241; Seymore v. Prescott, 69 Me. 376; Thompson v. Gray, 63 Me. 228.

Parol evidence cannot be introduced to vary the terms of the note, it being signed and delivered, as admitted.

Moore v. Prussing, 165 Ill. 319 and 322; Handley v. Drumm et al., 237 Ill.App. 582-592; Miller v. Novack, 251 Ill.App. 262, 271; Note, 20 A.L.R. 241, page 490.

Argued orally by A. W. Shands, for appellant, and by C. S. Snyder and A. D. Somerville, for appellee.

OPINION

Ethridge, P. J.

J. H. Jeffery was complainant in the court below and instituted an attachment in chancery against Mrs. Hester A. Jeffery and Y. B. Jeffery, who were residents of the state of California, but Mrs. Hester A. Jeffery had real estate situated in Bolivar county, Mississippi. The complainant, J. H. Jeffery, was a citizen and resident of the state of Illinois.

The indebtedness constituting the foundation of the action was a note for five thousand two hundred seventy-three dollars and thirty-three cents, dated at Piper City, Illinois, May 21, 1926, and duo twenty-four months after date, payable to J. H. Jeffery at the State Bank of Piper City, Illinois, and bearing seven per cent interest from date until due and seven per cent after that date if not paid, and also an attorney fee of twenty-five dollars plus ten per cent additional on the excess of principal and interest over two hundred dollars. The note was made on a form of notes given by the Bank of Piper City, Illinois, and was signed by Y. B. Jeffery and Hester A. Jeffery. On this note interest was paid on January 6, 1928, in the amount of three hundred fifty-nine dollars and eleven cents; on May 23, 1928, three hundred thirty-nine dollars and eleven cents; and on June 4, 1928, ten dollars.

It appears that the note was taken at the said time in California, all of the parties having formerly lived in or near Piper City, Illinois; the complainant being the uncle of Y. B. Jeffery and the brother-in-law of Mrs. Hester A Jeffery, the wife of his deceased brother. It appears that Y. B. Jeffery and his wife, Lurline, some time prior to the making of this note had borrowed money from the complainant for the purpose of operating a plantation in Bolivar county, Mississippi, said note being for four thousand dollars, principal and interest accruing thereon amounting to the amount of the present note at the date the note was taken. Y. B. Jeffery had moved to California, and had not prospered and had become bankrupt and been discharged from his debts, including the note which he had given his uncle. When this bankruptcy proceeding occurred the note of Y. B. Jeffery and Lurline Jeffery to J. H. Jeffery had been passed to the bank in Piper City as collateral security for a debt owed by J. H. Jeffery of approximately two thousand dollars, and the bank had notified him after the bankruptcy that he must procure additional collateral, as they could not accept the note with Y. B. Jeffery a bankrupt. J. H. Jeffery went from Illinois to California and took up with Y. B. Jeffery and his wife, Lurline, the making of a new note. There is a conflict in the evidence as to just what happened at that time, but the complainant's version of the transaction was that he went out there and took up with Y. B. Jeffery and his wife the making of a new note, and that Y. B. Jeffery agreed to do so, but his wife, Lurline, refused to sign the note. He stated that he asked Y. B. Jeffery if he intended to beat, him out of the money, and he said, no, he did not, that he expected to pay it when he was able and was willing to give him another note. After Lurline...