Love v. Wilson
| Decision Date | 15 April 1935 |
| Docket Number | 31134 |
| Citation | 159 So. 97,172 Miss. 546 |
| Court | Mississippi Supreme Court |
| Parties | LOVE, SUPERINTENDENT OF BANKS, v. WILSON |
January 21, 1936
APPEAL from the circuit court of Sunflower county HON. S. F. DAVIS Judge.
Suit by J. S. Love, Superintendent of Banks, against G. A. Wilson. From an adverse decree, complainant appeals. On motion to dismiss the appeal. Motion overruled.
Action by J. S. Love, Superintendent of Banks, against G. A. Wilson. Judgment for defendant, and plaintiff appeals. Reversed and rendered.
Reversed and judgment here for appellant.
Cooper & Thomas, of Indianola, for appellant.
The appellant insists that where there are no issues of fact and a directed verdict is granted to one side and refused to the other side, and, therefore, no issue is presented to the jury and final judgment is rendered, in effect, by the court without anything being passed on by the jury, there is no earthly function for the motion for a new trial nor for any exceptions to the refusal to direct a verdict.
Hayes v. Slidell, 55 So. 356, 99 Miss. 583.
Where a bank has sustained losses or impaired its capital structure and the directors of the bank execute negotiable promissory notes, payable to the bank, for the purpose of restoring its capital structure, and thus enabling the bank to continue business, such notes are based upon a valuable consideration.
Wenzlaff v. Tripp State Bank, 208 N.W. 222; Brodrick v Brown, 69 F. 497; Union Bank of Brooklyn v. Sullivan, 21 N.Y. 332, 108 N.E. 558; St. Marks Church v. Teed, 120 N.Y. 583, 24 N.E. 1014; Dykman v. Keeney, 42 N.Y.S. 488, 45 N.Y.S. 137; 160 N.Y. 677; Hope Mutual Life Ins. Co. v. Perkins, 38 N.Y. 404; Hurd v. Kelly, 78 N.Y. 588, 34 Am. Rep. 567; Galena National Bank v. Ripley, 55 Wash. 615, 104 P. 807, 26 L.R.A. (N.S.) 993; Bissinger v. Lawson, 57 Miss. 36; Howard v. Rhodes, 81 So. 362; Love, Supt. of Banks et al. v. Dampeer et al., 132 So. 439, 159 Miss. 430, 73 A.L.R. 1376.
Even if the Wilson note be held a gift without consideration, Wilson is now estopped to set up that defense, because the donee was induced by said gift to change its position.
12 R. C. L., sec. 17, page 941; Ricketts v. Scothorn, 42 L.R.A. 794; 2 Pom. Eq. Jur., sec. 804; Miller v. Western College of Toledo, 42 L.R.A. 797.
Moody & Johnson, of Indianola, for appellee.
The fact that there is a motive for a promise does not supply the element of consideration, and conversely the fact that there is no motive for a promise does not deprive it of consideration.
13 C. J., page 325; Philpot v. Gruninger, 20 L.Ed. 743, 744.
The motive that may have induced the appellee to execute the note sued on in order to carry into effect the contract with the superintendent of banks is not the consideration for "nothing is consideration that is not regarded as such by both parties."
It is settled that where an original contract is illegal, any subsequent contract which carries it into effect, is also illegal. Where the consideration of a contract is impeached for illegality, if the subject matter of the contract can be traced back to an original illegal contract, the substituted security is void.
Clark on Contracts, pages 497-8; Coulter v. Robertson, 13 S. & M. 18; 18 C. J., page 241, sec. 380.
The contract which supplied the consideration for the note sued on is illegal.
Any agreement (referring to a public officer) by which he places himself in a position which is inconsistent with his duty to the public and has a tendency to violate such duties, is clearly illegal and void.
Elliott on Contracts, sec. 706, page 57.
An agreement which cannot be legally enforced is void, and any money paid, as a consideration therefor, can be recovered back.
Fuqua v. Joudon et al., 158 So. 795.
Powers conferred on a public officer can be exercised only in the manner, and under the circumstances prescribed by law, and any attempted exercise thereof in any other manner, or under different circumstances, is a nullity.
46 C. J. 1023, secs. 290, and 1034, sec. 296.
Under our system of practice, a party to an action at law may except specially to any action of the trial court, or he may except generally by filing a motion for a new trial, and incorporate therein all exceptions. If a motion for a new trial is filed and overruled it is not necessary for a party to the action to except to instructions given or refused, but if a motion for a new trial is not filed and overruled, it is necessary that exceptions be taken to the action of the court in giving and refusing instructions.
Scott v. State, 31 Miss. 473, 477; Memphis & Charleston R. R. Co. v. Chastine, 54 Miss. 503, 507-8.
Of course, exceptions can be taken otherwise than by a motion for a new trial. But unless taken otherwise, or by a motion for a new trial, there are no exceptions on which error can be assigned or predicated.
Smokey v. Johnson, 4 So. 788, 789; State v. Spengler, 74 Miss. 133, 20 So. 879, 880; McCorkle v. I. C. R. Co., 57 So. 419-20; Evans v. Clark et al., 24 So. 532-3; I. C. R. R. Co. v. State ex rel. Brown, 48 So. 561; Southern Ry. Co. v. Jackson, 49 So. 738; Weyen v. Weyen, 139 So. 856.
McGowen, J.
The grounds of this motion are: (1) No appeal bond has been executed and filed by the appellant; and (2) "the record, including the stenographer's notes, if a part of the record, wholly fails to show any objections or exceptions, by the plaintiff below, to any action of the trial court on which error can here be assigned and considered by this court."
The first of these grounds is ruled by the opinion in case case of J. S. Love, Supt. of Banks, v. Mississippi Cottonseed Products Company, 174 Miss. 697, 159 So. 96, this day decided. The second is without merit, and the necessity vel non of objections and exceptions by the appellant in the court below will be for decision when the case is submitted on its merits.
Overruled.
On December 2, 1930, G. A. Wilson, the appellee, executed a promissory note payable to the Commercial Bank & Trust Company of Drew, Mississippi, or bearer, for the sum of six thousand dollars, bearing interest and due January 1, 1932. This note was executed by him in his office at Greenwood, and Wofford, Manning, Barnes, and Burnett were present, each of whom, at the same time executed a note of like tenor and effect payable to said bank; these notes were delivered to the bank the following day, and entered on its books as part of its assets. All of the above-named parties, including Wilson, were directors of the bank. It appears that prior to this conference of these directors the bank had sustained a loss in excess of thirty thousand dollars, which was more than its capital stock and surplus; that these directors had on that day, or the day before, reported this fact to J. S. Love, superintendent of banks, at his office in Jackson, Mississippi, and that Love told Wofford and another director that if the five above-named directors would execute their several notes, as above described, he would allow the bank to remain open.
Wilson testified that he executed the note in order to increase the assets of the bank and to carry out the understanding that Wofford stated he had with Love. He also testified that these directors and he knew the capital stock of the bank was impaired, as did Love, and that they knew if the capital structure of the bank was not strengthened it would be the duty of Love,...
To continue reading
Request your trial