Jones v. Curtis

• Decision Date: 24 March 1924
• Docket Number: 23850
• Court: Mississippi Supreme Court
• Parties: JONES v. CURTIS

99 So. 438

134 Miss. 585

JONES v. CURTIS

No. 23850

Supreme Court of Mississippi

March 24, 1924

Division B

APPEAL from circuit court of Quitman county, HON. W. A. ALCORN, JR. Judge.

Suit by John P. Jones against John Z. Curtis. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Judgment reversed and cause remanded.

Lowrey & Lamb, for appellant.

Our serious contentions on this appeal are that the instructions given for the defendant are each and all erroneous in that they direct a verdict for the defendant if the property which the plaintiff agreed to ship to the defendant and failed to ship was worth as much as the amount of the check and note. Also that the evidence taken strongest for the defendant did not authorize a verdict for the defendant but at most only authorized a deduction from the face of the note and check in proportion which the value of the property not shipped bore to the value of the total property which under the agreement was the consideration.

In other words, we contend that under all of the law, statutory and text book and court decisions, a partial failure of consideration on a bill or note does not authorize a verdict for the defendant in a suit on the bill or note but authorizes only a reduction pro tanto. This is the rule by the Negotiable Instrument Act, section 28, chapter 244, Act 1916 (H. 2606). Also by the decisions of our our court: Coulson v. Stevens, 85 So. 83; Despres, et al. v. Hough Drug Co., 86 So. 359. Also by the decisions of other courts; Riddle v. Gage (N. H.), 75 Am. Dec. 151, with note. Also by the text books; 4 A. & E. Ency. of Law, 195; 3 R. C. L. 945. There is no question in this case that the bulk of the property which the plaintiff, by the testimony of the defendant and his own witnesses, agreed to ship to the defendant, was actually shipped and received and appropriated and used by the defendant and his tenants. The instructions on this are here in hopeless conflict. The reduction must be pro tanto which we submit is the law beyond controversy.

Note: No brief filed on behalf of appellee.

OPINION

COOK, J.

This suit was filed in the circuit court of Quitman county by the plaintiff, John P. Jones, against the defendant, John Z. Curtis, on a dishonored check for three hundred dollars and a promissory note for one hundred and forty-five dollars both given by the defendant to the plaintiff on December 27, 1920, as a part of one transaction. The defendant filed a plea of the general issue and a special plea setting up a failure of consideration, and at the trial there was a verdict and judgment for the defendant, from which this appeal was prosecuted.

It appears from the testimony that in the early part of 1920 several negro tenants moved from lands of the appellee in Quitman county to the plantation of the appellant in Leflore county. At the end of the year these tenants desired to return to the plantation of the appellee, and, after some negotiation by telephone and letter, the appellee went to the plantation of the appellant and concluded an arrangement for the return of the tenants. Under the terms of the agreement between the parties, the appellee agreed to pay to the appellant the sum of four hundred forty-five dollars, for which he executed and delivered the check and note sued on but the testimony is conflicting as to the obligation assumed by the appellant. The testimony for the appellee tended to prove that...