People's Bank v. Alabama Great Southern Railroad Co.

• Decision Date: 09 April 1888
• Citation: 4 So. 115,65 Miss. 365
• Parties: PEOPLES' BANK OF MERIDIAN v. ALABAMA GREAT SOUTHERN RAILROAD COMPANY
• Court: Mississippi Supreme Court

4 So. 115

65 Miss. 365

PEOPLES' BANK OF MERIDIAN v. ALABAMA GREAT SOUTHERN RAILROAD COMPANY

Supreme Court of Mississippi

April 9, 1888

APPEAL from the Circuit Court of Lauderdale County, HON. S. H TERRAL, Judge.

On the 26th of January, 1881, Wilder & Co., cotton buyers, delivered at the town of Meridian in the county above mentioned, 20 bales of cotton to the Alabama Great Southern Railroad Company, to be transported to New York, under consignment to Copeland & Co., but subject to the order of Wilder & Co. Wilder & Co. transferred the bill of lading taken for the cotton to the People's Bank of Meridian. Before the cotton was shipped from Meridian, Wilder & Co. failed and the cotton was attached by their creditors and taken by the officers of the law from the custody of the railroad company.

The railroad company having thus surrendered the cotton and failed to ship it, the People's Bank, on the 9th of February, 1881, instituted this action on the bill of lading transferred by Wilder & Co. to recover damages for the breach of the contract sued on, or the value of the cotton.

Among other defences the defendant pleaded that at the time the bill of lading was transferred to plaintiff, it was doing business without having paid the privilege tax imposed upon it, and having obtained a proper privilege license, as prescribed by law, and is, therefore, disqualified to maintain any action upon the contract here sued on.

On the trial the court instructed the jury for the defendant as follows:

"8. While the law presumes, in the absence of evidence, that the People's Bank had a proper privilege license, yet if the evidence offered by the defendant satisfies the jury that said bank at the time of the indorsement of the bill of lading sued on, did not have a sufficient privilege license then the law denies the right in the bank to maintain this suit, and the jury will find for the defendant."

There was a verdict and a judgment for the defendant. The plaintiff appealed.

Reversed and remanded.

Walker & Hall, for the appellant.

As to the defense attempted under the statute relating to privilege license, we hardly deem it necessary to comment.

The statute is highly penal--so much so, that upon the first application of it in the state, the legislature, with great unanimity, enacted a law giving all persons who had fallen under its ban an opportunity to relieve themselves of its severe penalties--it should be strictly construed.

John W Fewell, for the appellee.

The defendant made a strong prima facie case of non-payment of sufficient privilege taxes, and the judgment of the court below ought to be affirmed.

OPINION

COOPER, C. J.

The eighth instruction for the defendant should not have been given. Whether the bank had paid a proper privilege tax at the time it acquired the bill of lading is not material to its right to sue. The object of the suit is not to enforce a contract made by the bank in the course of its business; but is to recover property (or its value) acquired by it from a third person. If the contract between the bank...