Newman v. Bank of Greenville

• Decision Date: 21 April 1890
• Parties: H. & C. NEWMAN v. BANK OF GREENVILLE ET AL
• Court: Mississippi Supreme Court

7 So. 403

67 Miss. 770

H. & C. NEWMAN v. BANK OF GREENVILLE ET AL

Supreme Court of Mississippi

April 21, 1890

APPEAL and cross-appeal from the chancery court of Washington county, HON. W. R. TRIGG, Chancellor.

The facts of this case may be found stated at length in the opinion of the court on the former appeal. See Newman v Bank of Greenville, 66 Miss. 325.

On the return of the mandate to the lower court, additional evidence was taken upon both sides, and several new elements of controversy were introduced. The facts pertaining to them, so far as they are necessary to a proper understanding of the points here decided, are as follows:--

Moyses & Co. were in debt to appellants, Newman & Co., in a large sum, only partially secured, and, desiring to get further advances, agreed "to furnish them as additional collateral for $ 2000," notes to that amount secured by trust-deeds. In execution of this agreement, they delivered to complainants, Newman & Co., notes aggregating $ 2175 among them being the note of one Satterwhite, for $ 250 secured by a trust-deed on crops to be grown. This trust-deed, besides securing the note, was given to secure Moyses & Co. for advances to be made during the year to Satterwhite, and after the delivery of the note to complainants, Moyses & Co. advanced Satterwhite under the trust-deed, to the amount of over $ 1000.

The note for $ 250 was paid to complainants by the delivery of part of the mortgaged cotton, and afterwards Satterwhite turned over to Moyses & Co. other cotton embraced in the trust-deed, and, of this, nine bales were purchased by appellees from Moyses & Co. In addition to the nine bales thus purchased, defendants received $ 270, in settlement of the Satterwhite trust-deed, and in this proceeding complainants have sought to charge defendants with the said sum of $ 270, and the value of the nine bales of cotton, on the ground that they, complainants, were the owners of the trust-deed to Satterwhite, it having been deposited with them by Moyses & Co., as collateral, and the $ 2000 of indebtedness, to secure which the collaterals were given, not being paid.

In reference to the controversy over the three bales of cotton marked "Sam D. W.," it is not deemed necessary to an understanding of the point passed upon by the court to further state the facts. The agreement of counsel referred to, is in the following language: "We hereby agree that the above and annexed statements truly exhibit the shipments by Sam Moyses & Co. to the Goldsmith Cotton & Provision Co. of cotton produced upon the Sligo plantation mentioned in above cause in the year 1887, and the date of the receipt and sale of the same by said company, and the net proceeds thereof, and that they may be filed in said cause as evidence accordingly."

The opinion, when taken in connection with the statement of facts contained in the former opinion, sufficiently states the facts in reference to the suing out by appellants of the writ of injunction and its service upon the Goldsmith Cotton &amp Provision Co., and the sale by it of the cotton.

Complainants have again appealed and assign for error the action of the court in refusing to charge defendants with the value of the nine bales of cotton and $ 270 received on account of Satterwhite, and also the action of the court in refusing to charge the Goldsmith Cotton & Provision Co. with the proceeds of the seven bales of cotton shown to have been in its possession on the day the writ of injunction was served upon it.

The defendant, the Goldsmith Cotton & Provision Co., has prosecuted a cross-appeal from that part of the final decree which charges it with the value of the three bales of cotton marked "Sam D. W.," and which complainants sought by defendants to show was a part of the cotton raised upon Sligo place, and shipped by Moyses & Co. to the said defendants.

Decree reversed.

Phelps & Skinner, for appellants and cross-appellees.

The appellants were not required to prove notice to the Goldsmith Cotton & Provision Co. as to any part of the cotton received by it, because the want of notice must be pleaded as a defense. Stacey v. Barker, 1 S. & M. Chy. 112; 3 Jones on Mort., § 1465; Pore. Eq. Jur., 784. There was no such plea. But if there had been, the evidence was sufficient to show that it had notice of the fact that Moyses & Co. were renting Sligo plantation, and knew this as early as November 1. The amount of cotton received after that was ample to pay the balance of the rent note due to appellants after applying the products covered by the injunction.

In reference to the seven bales of cotton sold by the Goldsmith Cotton & Provision Co. on the day the injunction writ was served, we say the cotton was in its possession up to that day, and the writ being served that day, it devolves on the company to show that it was sold before service of the writ, as it was a matter peculiarly within its knowledge or means of ascertainment.

The defendants were properly charged with the three bales of cotton marked "Sam D. W." The marks of all the cotton which Moyses & Co. and the Goldsmith Cotton & Provision Co. acknowledge to have been received from the Sligo place are given in the agreed statement of the attorneys, together with the names of those who produced it, and they do not include these three bales, which it is not denied were raised on the Sligo place. Hence they were omitted by mistake, and their identity as Sligo cotton cannot be questioned and so thought the chancellor.

Appellants were entitled to recover of defendant the cotton and money received by them on account of Satterwhite's trust-deed. There is no dispute that the trust-deed was delivered to appellant as collateral to his debt, and there is no intimation in the correspondence any where that when the appellants received from the trust-deed the amount of $ 2000 the balance should be held for Moyses & Co. The very terms of the contract negative this, as Moyses & Co. agreed to ship to appellants every bale of cotton they might control, the proceeds to be applied to the payment of the debt due to appellants. Certainly under such facts it will not be implied that Moyses & Co. assigned only the note and reserved an interest in the trust-deed; that would be in violation of their...