McDonald v. Kamper

• Decision Date: 18 February 1907
• Citation: 89 Miss. 221,42 So. 877
• Court: Mississippi Supreme Court
• Parties: C. M. MCDONALD v. JOHN KAMPER

42 So. 877

89 Miss. 221

C. M. MCDONALD v. JOHN KAMPER

Supreme Court of Mississippi

February 18, 1907

November 1906

FROM the chancery court of Jones county, HON. JAMES L. MCCASKILL Judge.

McDonald the appellant, was complainant, and Kamper, the appellee defendant in the court below. The demurrer of the defendant to complainant's bill was sustained and complainant appealed to the supreme court. The opinion sufficiently states the case.

Reversed and remanded.

Mayes & Longstreet, for appellant.

The facts stated in the bill show that as to $ 1, 161 parcel of these notes, there was no consideration to McDonald. The Laurel National Bank, of which Kamper was president, desired to borrow $ 25, 000 of the First National Bank of Meridian. For certain reasons which do not appear in the bill, the Laurel National Bank did not execute its own note for the sum so borrowed, but Kamper, McDonald and Pierce executed their individual notes, accommodation paper and obtained the money. This money, every dollar of it, was passed to the credit of the Laurel National Bank, and, as the bill expressly alleged, was used by that bank in and about its business, and was subsequently repaid by the bank, principal and interest, as the bank should have done. The debt was discharged by the bank for whose accommodation the paper was given, and discharged in full. Kamper, one of the signatories of the accommodation paper, and president of the borrowing bank, represented and stated to McDonald that he, Kamper, had refunded to his own bank the sum of $ 1, 161, interest paid by the bank on the money so borrowed by it, because the borrowing bank had, under the law, no authority to pay interest on borrowed money, and then Kamper represented to McDonald that he, McDonald, was liable over to him for the money which he had so refunded to his own bank; and McDonald, relying upon the fact that Kamper was an expert banker, took his word for it and executed notes secured by trust deed, in which notes were included this money, being $ 1, 161 interest on a fund which Kamper, as president, had handled for the benefit of his bank, and on which McDonald had never received one cent.

The notes are not in the hands of a bona fide purchaser, and the contract remains executory. McDonald is not in the attitude where he is seeking to recover money voluntarily paid by him. As stated, the contract is still executory, and Kamper, through his substituted trustee, is seeking now to enforce against McDonald, by a sale of his lands, the notes so improvidently executed by him without consideration.

That injunction is a proper remedy in a case where the trustee is proceeding to sell lands for a sum greater than that which is really due, is settled law in this state. Carey v. Fulmer; 74 Miss. 729.

The real contention of the appellee is the proposition that the bill is defective and demurrable, because the complainant did not tender him the five hundred and odd dollars he admitted to owe. To this proposition there are two answers:

First.--The defendant below (appellee here) assigns no such ground in his demurrer. He did not demur in the court below to the bill, because no tender was made; and not having so demurred in the court below, where the bill was amendable, he cannot here, and in this court, for the first time raise that question.

It is not true, as is alleged in the brief of appellee, that complainant below did not comply with the rule which requires him to do equity when he appeals to an equity court for protection.

The bill itself admits the owing of the sum of $ 504, with six per cent interest thereon from the date of the notes and trust deed, and alleges that "this sum complainant is willing and ready to pay in full settlement of the said notes and trust deeds securing the same when due."

Stone Devours, and Miller & Baskin, for appellee.

There was no equity on the face of the bill. An examination of this bill will show its allegations to be vague, indefinite and uncertain. The attempt to plead...