Montjoy v. Delta Bank

• Decision Date: 30 January 1899
• Citation: 76 Miss. 402,24 So. 870
• Court: Mississippi Supreme Court
• Parties: GIDEON MONTJOY, JR., v. DELTA BANK

24 So. 870

76 Miss. 402

GIDEON MONTJOY, JR., v. DELTA BANK

Supreme Court of Mississippi

January 30, 1899

November 1898

FROM the circuit court of Leflore county, HON. F. A. MONTGOMERY Judge.

The Delta Bank, appellee, was the plaintiff in the court below Montjoy, Jr., appellant, was defendant there. The circuit court rendered judgment for the plaintiff (Delta Bank), from which the defendant (Montjoy, Jr.) appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed.

Williamson, Humphries & Gwin, for appellant.

Does the appellee, the Delta Bank, occupy a more favored attitude under the law than the insurance company or its agent? We insist that the conditions that would make the note null and void in the hands of the insurance company, will and do make it null and void in the hands of the bank when it seeks relief in the courts, and the defendant invokes the aid of the statute.

The statute was not enacted for the benefit of the defendant, but enacted to aid the state in collecting revenue. The penalties are intended to compel those who embark in business on which the tax is fixed to pay the tax required by law.

The statute not only prevents the maintaining of the suit by the delinquent taxpayer, but goes further and declares no suit shall be maintainable on the contract which has been made and results from the business on which the privilege tax has not been paid.

"Incurable infirmity infected the contract and it was in no way helped by transfer, however innocent may have been the transferee or what value was paid." Such is the language of this court in Deans v. Robertson, 64 Miss. 195.

Rush & Gardner, for appellee.

Appellant seems to think that the decision of this court in the case of Deans v. Robertson, 64 Miss. 195, is decisive of this suit. This we deny. The point relied upon here was not made in that case. The decision in that case, as we understand it, amounts to this, or decides this, that the note in that suit being uncollectible because of the failure of Robertson & Company to pay a privilege tax license, was also uncollectible in the hand of the assignee. The bank in this case is not an assignee, therefore the decision in that case can have no bearing on this. The note in the Deans v. Robertson case, we take it, was a note payable to order.

The bank does not derive title to the note now sued on from the payee; we do not claim under any assignment. We ask to be permitted to quote the language of Judge Story in Bullard v. Bell, 1 Mason, 251. He says: "A note payable to bearer is often said to be assignable by delivery; but, in correct language, there is no assignment in the case. It passes by mere delivery, and the holder claims merely as bearer. The note is an original promise by the maker to any person who shall become the bearer. It is, therefore, payable to any and every person who successively holds the note bona fide, not by virtue of any assignment of the promise, but by an original and direct promise moving from the maker to the bearer." Also see Craig v. Vicksburg, 31 Miss. 216; Hart v. Taylor, 70 Miss. 655, and Bank v. Wofford, 71 Miss. 711.

OPINION

WOODS, C. J.

This case was submitted for decision to the trial court, a jury having been waived, on an agreed statement of facts, and judgment entered in favor of the appellee, from which action of that court this appeal is prosecuted.

The facts are these: Montjoy, the appellant, took out a policy of insurance in the Connecticut Indemnity Insurance Co. for $ 10, 000, and gave his promissory note to one Cruikshank, the agent of said company, for the sum of $ 180.70, for the premium of said policy. The note was payable to Cruikshank or bearer, and, before maturity, was sold to and purchased by the appellee, the Delta Bank, without notice of any defense thereto, and that, at the time said note was given and said policy was issued, the said insurance company was doing business in this state without having paid its privilege tax. The question is, was the note collectible by the bank by suit, it having been made payable to Cruikshank or bearer? The answer to this question seems to be found in the opinion of ...