Newcomb v. Home Trust Co
| Decision Date | 27 November 1933 |
| Docket Number | 30801 |
| Citation | 169 Miss. 883,151 So. 158 |
| Court | Mississippi Supreme Court |
| Parties | NEWCOMB v. HOME TRUST CO |
1. BILLS AND NOTES,
Maker's alleged defense against payee of note held not available against holder in due course.
2. BILLS AND NOTES.
Payee of note in accepting check for lessor amount than required by note held not agent of holder in due course so as to constitute payee's acceptance ratification by holder in due course.
3. ACCORD AND SATISFACTION. Compromise and settlement.
Where payee indorsed note to holder in due course, and, when maker sent check for lesser amount than required by note as payment in full for materials, payee informed maker that he would cash check as partial payment and delivered cash to indorsee acceptance of cash held not "accord and satisfaction" of amount of note, though some of officers of indorsee corporation were also officers of payee corporation.
4 CORPORATIONS.
That two corporations have some officers in common does not make notice to officers of one corporation notice to other.
APPEAL from circuit court of Jackson county HON. W. A. WHITE, Judge.
Action by the Home Trust Company against Miss Clista Newcomb administratrix of the estate of F. D. Newcomb, deceased. From judgment for defendant in the justice court, plaintiff appealed and, from judgment for plaintiff in the circuit court, defendant appeals. Affirmed.
Affirmed.
H. B. Everitt, of Pascagoula, for appellant.
Home Trust Company will hardly be able to escape the doctrine of accord and satisfaction when it ratifies and adopts the act of the Taylor Roofing Company in cashing this check. That act would very clearly commit the Taylor Roofing Company to an acceptance of the sum paid as in full of the debt had it retained the note.
Clayton v. Clark, 74 Miss. 499, 21 So. 565; Cooper et al. v. Yazoo & M. V. R. R., 82 Miss. 634, 35 So. 162; Phelps v. S. & P. Ins. Co., 156 Miss. 41, 125 So. 705; May Bros. v. Doggett, 155 Miss. 849, 124 So. 476; Rucker v. King Const. Co., 159 Miss. 387.
It is well settled that one of the ways of creating or establishing the relation of principal and agent is that of ratification. Ratification is defined as the express or implied adoption by one person of an act or contract performed or entered into in his behalf by another not having been previously authorized to do so. And any act which is done by one person on behalf of another without prior authority, and which would in law be such other's act if done in pursuance of authority is capable of ratification by him on whose behalf it was done.
Thurmand v. Carter, 59 Miss. 127; Meyer v. Morgan, 51 Miss. 21, 24 Am. Rep. 617; Farmers, etc., Bank v. Bank (Neb.), 68 N.W. 488; Stetson v. Dodson, 103 S.W. 683; Natchez v. Minor, 9 S. & M. 544; 48 Am. Dec. 727; Harman v. Barslow, 23 Miss. 279; Miss. R. R. Co. v. Harris, 36 Miss. 17; Burns v. Kelley, 41 Miss. 339; Harris v. Holiday, 4 How. 338; Burns v. Yeizer, 27 Miss. 188; Kountz v. Price, 40 Miss. 341.
Ford, White & Morse, of Pascagoula, for appellee.
The theory of the appellee in the lower court and which theory was adopted by the circuit judge in deciding this case was radically different from that set forth in the argument made by appellant about this matter. In other words, the court held that while the facts proven by appellee about the check, might or might not have been a good defense, were the Taylor Roofing Company plaintiff in the case, that same would not constitute a defense to the suit of appellant, a holder of the note in due course.
Secs. 2708, 2713 and 2716, Code of 1930.
The appellee in this case was a holder of the note in due course and accordingly entitled to the rights and privileges thereof.
Payment made to the original payee instead of the holder of the note is at the risk of the maker.
Union Trust Co. v. Bostick, 133 Miss. 627; Sivley v. Williamson, 112 Miss. 276.
Agency is not presumed by the courts, but is a fact which must be proven as other facts are required to be proven, and the burden of proof is on the party who alleges the agency.
If payment is made to a person who does not produce the note, the burden is on the party making the payment to show that the person receiving the same was the owner of the note or was authorized to receive payment.
8 C. J. 1015; sec. 16, pars. 13-22; 21 R. C. L. 19, sec. 130.
Appellee brought this action against appellant as administratrix of the estate of F. D. Newcomb in the court of a justice of the peace of Jackson county to recover the sum of one hundred twenty-six dollars and seventy-six cents, which appellee claimed represented the balance of principal, interest, and attorney's fee due on a certain promissory note that it held against said F. D. Newcomb. The trial resulted in a judgment in favor of the defendant; from that judgment the plaintiff appealed to the circuit court, where there was a trial by agreement before the circuit judge sitting as judge and jury, resulting in a judgment in appellee's favor for the amount sued for. From that judgment appellant prosecutes this appeal.
Appellant's defense to the note was accord and satisfaction. The note was for four hundred dollars. Appellant claimed that the intestate paid appellee two hundred ninety-seven dollars in full satisfaction of the note, which appellee accepted as such. Appellee is a finance corporation under the laws of the state of Tennessee, with its home office at Nashville, in that state. The Taylor Roofing Company is also a Tennessee corporation with its home office in Nashville. It had an office, however, at Meridian, in this state. The Meridian office was in charge of S. H. Brown, state manager. The agreed facts, leaving off the formal parts, date, and signature, follow:
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