McCormick v. F. Altneave & Co.

Citation73 Miss. 86,19 So. 198
PartiesMARY MCCORMICK v. F. ALTNEAVE & CO
Decision Date16 December 1895
CourtUnited States State Supreme Court of Mississippi

October 1895

FROM the circuit court of Carroll county HON. C. H. CAMPBELL Judge.

The appellees brought suit against the appellant and her husband John C. McCormick, the latter being joined for conformity only, on a promissory note, signed by the husband alone, for the sum of $ 355.80, and, to fix liability upon appellant alleged in their declaration the several matters set out in the opinion of the court touching the relation of the parties defendant, the nature and origin of the indebtedness, and the intent with which the note was executed.

The appellant demurred to the declaration, assigning as grounds of demurrer (1) that the plaintiffs showed no right of action against her, and (2) that she was not a party to or in any way connected with the note sued on.

The demurrer was overruled, and, appellant having failed to plead within the time allowed for that purpose, a judgment by default was entered against her. From this judgment she appeals.

Judgment reversed and entered.

Coleman, Somerville & Liddell, for appellant.

The suit is not one to bind the wife as an undisclosed principal, but rather an effort to subject her to liability under § 2293 of the code of 1892 for plantation supplies, and the note is treated as a recognition of the debt for supplies, and not as itself constituting an obligation on the part of the wife to pay. It is manifest that the plaintiff's right of action on open account for the supplies furnished is barred by the three year statute of limitations, and this accounts for the averments of the declaration designed to show an acknowledgment of the indebtedness sufficient to save the bar. The declaration is oddly drawn, but seems to be founded on a debt for supplies that is, as stated, barred by the statute of limitations. It does not aver distinctly that the note is the obligation of the wife, and her name does not appear on it, and the suit should not be maintained as one on the note. The note is not that of one acting for an undisclosed principal. The payee of the note, who now sues on it, had full knowledge of all the facts, and voluntarily took the husband's obligation in extension of the indebtedness. In 9 Am. ed. of Chitty on Contracts, p. 233, note 3, we find these words quoted from Shaw, C. J., in Taber v. Cannon, 8 Metc., 460: "We think it is settled by authorities, that when it is known that a person is acting as agent, or when a draft is addressed to him as agent, yet if he give or accept it in his own name, he is personally liable, and, as a converse of this proposition, his principal is not liable." See Bedford Com. Ins. Co. v. Covell, 8 Metc., 442.

The contract in question is that of the husband, and not that of the wife. By its terms it is the obligation of the husband, and the law should not make a contract that the parties, with full knowledge of the facts, did not make, putting her signature to the note when her agent has negatively refused to do so. A contract to pay may be implied where the principal has received the benefit of the consideration, but the contract is not the note itself, where the principal is not undisclosed. Pents v. Stanton, 10 Wend., 271; Bank of British North America v. Hooper, 5 Gray, 567.

This suit, we insist, is one upon the note, and the demurrer should have been sustained. But if it be treated as one upon open account, then the appellants fare no better, for no bill of particulars or statement of the account appears in the record. A writ of inquiry, then, was necessary to determine the amount due, before the default judgment could be made final under § 745, code 1892.

Southworth & Stevens, for appellees.

The averments of the declaration were such as to impose liability on the wife. Cook v. Ligon, 54 Miss. 368; Guion v. Doherty, 43 Ib., 538; Clopton v. Matheney, 48 Ib., 285; Porter v. Staten, 64 Ib., 421; Ross v. Baldwin, 65 Ib., 570; code 1892, § 2293.

The appellees simply ignored the agent, and sued the principal. This was justified by the facts of the transaction averred in the declaration, the husband having acted throughout as the agent of the wife, even signing the note in that capacity. Cook v. Ligon, supra.

The judgment recites that the husband was only joined pro forma. No judgment was taken against him. This course was proper on the authority just cited, as well as on the cases cited in that opinion to sustain it of Mallett v. Parham, 52 Miss. 921; Bacon v. Bevan, 44 Ib., 293.

No further bill of particulars than the note sued on was necessary. That...

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7 cases
  • Shields v. Early
    • United States
    • United States State Supreme Court of Mississippi
    • 23 Abril 1923
    ...... declaration is a part thereof and is to be so considered for. all purposes. See 735 Miss. Code 1906 (Hemingway's Code,. sec. 518); McCormick v. Attmeave, 73 Miss. 86, 19. So. 198; Georgia Home Ins. Co. v. Holmes, 75 Miss. 390, 23. So. 183. . . Whether. damages are ......
  • Chase Nat. Bank v. Chapman
    • United States
    • United States State Supreme Court of Mississippi
    • 25 Marzo 1935
    ...... Porter. v. Staten, 64 Miss. 421, 424; Ross v. Baldwin, 65. Miss. 570, 5 So. 110; Brooks v. Barkley, 72 Miss. 320, 18 So. 419; McCormick v. Altneave & Co., 73. Miss. 86, 19 So. 198; Gross v. Pigg, 73 Miss. 286,. 19 So. 235; Johnson v. Jones, 82 Miss. 483, 34 So. 83; Holden v. Rice, ......
  • Behrens v. Kruse
    • United States
    • Supreme Court of Minnesota (US)
    • 14 Enero 1916
    ...... correct. 1 Cyc. 373, 397; L. Everingham & Co. v. Halsey, 108 Iowa 709, 78 N.W. 220; Greenwood v. Curtis, 6 Mass. 358, 4 Am. Dec. 145; McCormick v. F. Altneave & Co. 73 Miss. 86, 19 South, 198;. Fesenmayer v. Adcock, 16 Mees. & W. 449; Buck v. Hurst & Bailey, L.R. 1 C.P. 297; see also I.L. ......
  • Behrens v. Kruse
    • United States
    • Supreme Court of Minnesota (US)
    • 14 Enero 1916
    ...1 Cyc. 373, 397; Everingham & Co. v. Halsey, 108 Iowa, 709, 78 N. W. 220;Greenwood v. Curtis, 6 Mass. 358, 4 Am. Dec. 145;McCormick v. Altneave & Co., 73 Miss. 86,19 South. 198; Fessenmayer v. Adcock, 16 M. & W. (Eng.) 449; Buck v. Hurst & Bailey, L. R. 1 C. P. 297. See, also, Elwood Mfg. C......
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