Ovett Land & Lumber Co. v. Wimberly

• Decision Date: 14 June 1915
• Docket Number: 16745
• Citation: 68 So. 855,109 Miss. 601
• Parties: OVETT LAND & LUMBER CO. v. WIMBERLY
• Court: Mississippi Supreme Court

68 So. 855

109 Miss. 601

OVETT LAND & LUMBER CO. v. WIMBERLY

No. 16745

Supreme Court of Mississippi

June 14, 1915

APPEAL from the circuit court of Jones county. HON. P. B. JOHNSON Judge.

Suit by W. B. Wimberly against the Ovett Land & Lumber Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and set aside, demurrer sustained and cause dismissed.

Goode Montgomery and W. J. Pack, for appellant.

The decision of this case involves the construction of and liability on an order or check issued by appellant to one of its laborers and held by a third person for collection.

It is either a negotiable instrument or special contract. If it is a negotiable instrument, the judgment must be reversed.

(A) It specifically provides that it is payable in merchandise. No provision is made for payment of money, and for the court to render a judgment for money is to read into the contract and to substitute something the parties thereto never placed therein. Appellee should have brought some appropriate action by which he could enforce his right to the merchandise but failing to do this he must suffer the consequence of his folly.

(B.) If it is not a negotiable instrument, the judgment must be reversed 1. It is not a negotiable instrument, because (a) It names neither payee nor drawee; (b) It is not dated; (c) There is no fixed time for payment; (d) It contains no promise to pay; (c) It calls for payment in other than money. (f) The amount is uncertain. (g) The value is conditional as the merchant may fix the value of goods and further in that it is void in the hands of any other than original holder. (h) It shows on its face that it is void if transferred. Norton on Bills and Notes (3rd. Ed.), 26. 2. The contract must be special and appellee's suit must fail. For the original contract which was entered in by and between appellant and the laborer provided specially that it would become immediately void upon its transfer to another. This is a provision which is perfectly valid in any special contract and is binding on the parties thereto and all others who have knowledge of the provision. Appellee has no greater rights than the laborer who made the contract for he took it with full knowledge of this provision and therefore cannot be heard to complain.

OPINION

STEVENS, J.

This action of debt was filed by appellee in one of the justice courts of Jones county against appellant, and on the trial of the appeal in the circuit court appellee, as plaintiff below filed an amended declaration, the material portion of which charges that:

"On the 10th of September, 1910, and at divers other times about said time, the exact dates of which are to plaintiff unknown the said defendant, the Ovett Land & Lumber Company, issued and delivered for value to certain and divers of its laborers and employees, the names of whom are to plaintiff unknown certain and divers negotiable checks, obligations, and evidences of indebtedness, whereby it, the said defendant, undertook and promised to pay to the bearer of each of said checks, obligations, and evidences of debt the amount severally named in each in merchandise on demand. One of said checks is of the following tenor, to wit: 'Good for one dollar in merchandise, void if transferred. Ovett Land & Lumber Co., Ovett Miss., by M. M. Hull, Jr.' And each of said other checks are of like tenor, except as to the amount, . . . the total amount of all of said checks being fifty-seven dollars and eighty cents. Each of said checks having been issued by said defendant for value as aforesaid were negotiated, sold, and transferred to plaintiff in due course, and whereby the said defendant became and was liable to...