Richardson v. Foster

• Citation: 18 So. 573,73 Miss. 12
• Court: United States State Supreme Court of Mississippi
• Decision Date: 28 October 1895
• Parties: W. P. RICHARDSON v. B. P. FOSTER

18 So. 573

73 Miss. 12

W. P. RICHARDSON v. B. P. FOSTER

Supreme Court of Mississippi

October 28, 1895

FROM the circuit court of Bolivar county, HON. R. W. WILLIAMSON Judge.

The opinion states the case.

Judgment affirmed.

J. H Wynne and Nugent & McWillie, for appellant.

The note, and writing on the back, constituted the contract, and parol evidence was inadmissible to explain it. The ground upon which parol evidence is admitted in the case of irregular indorsements is that the position of the name upon the paper is one of ambiguity. Such an indorsement is not a complete contract, but rather evidence of authority to write over it the contract that was entered into, which, in the absence of any such writing, may be disclosed by parol evidence. Daniel on Neg. Inst., § 711.

Parol evidence is not admissible to explain a written instrument that is unambiguous, and, if a party writing his name on the back of a commercial instrument expressly designates the character of his signature, such as indorser, guarantor, and the like, parol evidence is inadmissible, since the express description removes the ambiguity, and leaves nothing to be explained. Tied. on Com. Paper, § 273. So, the words "We hereby waive notice, demand, protest and all other formalities," written above the indorsement of the firm name of W. E. Ringo & Co., have no relation to the obligations of a principal debtor, and plainly show that the firm was an accommodation indorser merely.

The testimony of Ringo that the money borrowed was used in the business of the firm, should not have been admitted. The use to which it was put was immaterial. The liability is determined by ascertaining to whom it was loaned. Pickels v. McPherson, 59 Miss. 217; Moore v. Stevens, 60 Miss. 809; Pollock, Admr., v. Williams, 42 Miss. 88; Story on Part., § 134; 17 Am. & Eng. Enc. L., p. 1031, note.

The evidence as to the use of the money was inadmissible, because it was not offered until plaintiff had shown that the money was loaned upon the written contract, and thereby precluded himself from any recovery on the common count for money had and received. Richardson was forced to introduce evidence to meet it, and a contest was thus inaugurated over an immaterial point, a false issue, which was well calculated to mislead the jury.

The jury were erroneously instructed, at the instance of appellee, that, if Ringo borrowed the money for the use of the firm, and gave the notes sued on, Richardson was liable, and these instructions conflict with the fourth and fifth instructions given for the appellant, whereby the jury were told that liability was to be determined by the use for which the money was borrowed. The jury were thus left without a guide. Solomon v. Compress Co., 69 Miss. 319; Chapman v. Copeland, 55 Miss. 476; Cunningham v. State, 56 Miss. 269.

The action of the court below in giving the third instruction for the appellee, and in refusing the sixth instruction for the appellant, and the peremptory instruction asked by him was erroneous, for the reason that it negatives the view that appellant was discharged by the conduct of appellee in accepting security from Ringo and extending the time for the payment of the note. Even as principals or joint makers they would be thereby discharged. Smith v. Clopton, 48 Miss. 66; Brown v. Prophit, 53 Miss. 649; Polkinghorne v. Hendricks, 61 Miss. 366; 1 Bates on Part., § 341; Byles on Bills, p. 108.

One of the juror's was drunk on the afternoon preceding the argument before the jury, and the court observed his condition, and, after telling counsel for both parties that he would punish him and suspend the trial until the following morning, if no objection was offered, sent the juror to jail for the night. In response to the remark of the court, counsel for appellant observed that he had no objection to the juror being punished, but that he reserved his right to move for a new trial on account of his drunkenness. In view of these facts, a new trial should have been granted.

Yerger & Percy and N. B. Scott, for appellee.

The legal import of the act of one of the partners in putting the name of W. E. Ringo & Co. on the back of the note, before its delivery to the appellee, and in order to get the money from him, bound the firm as original promisors and co-makers of the note. Polkinghorne v. Hendricks, 61 Miss. 366; Good v. Martin, 95 U.S. 90; Milton v. Brown, 25 Fla. 461; McCallum v. Driggs, 17 So. 407; Schneider v. Scheffins, 20 Mo. 571; Irish v. Culter, 31 Mo. 536; Bryant v. Eastman, 7 Cush. (Mass.), 111; Benthal v. Judkins, 13 Met. (Mass.), 265; Colburn v. Averill, 30 Me. 310.

No testimony to vary the contract was admitted. The testimony admitted to explain the nature of the transaction was not only admissible, but also essential on the part of the appellee. Jennings v. Thomas, 13 Smed. & M., 617; Holmes v. Preston, 70 Miss. 152.

The question as to the true nature of the transaction was in dispute. The appellee contended that the note sued on was executed and delivered as the note of W. E. Ringo & Co. for money loaned to that firm, and not W. E. Ringo, and was made and delivered to bind the firm and enable it to get the money from him. The appellant, on the other hand, contended that the money was loaned to W. E. Ringo, individually, and that the firm name was written on the back of the note without authority, and as surety only. Parol evidence of the facts and circumstances attending the transaction was clearly admissible to determine the intention of the parties. Story on Prom. Notes, §§ 58, 59; Story's Pr., § 479; Brewster v. Silence, 8 N.Y. 207; Leonard v. Vredenburg, 8 Johnson (N. Y.), 29; Hall v. Farmer, 5 Den. (N. Y.), 484; Good v. Martin, 95 U.S. 97.

If it was true, as appellee testified, that the money evidenced by the note was loaned to W. E. Ringo & Co., there can be no question but that W. E. Ringo had, as a partner, the right to sign the partnership name to the note in which it was signed, and that the appellant is bound by all the statements, representations and admissions made by Ringo in regard to the transaction prior to the dissolution of the firm of W. E. Ringo & Co., and all of these complained of by appellant were made by Ringo prior to that event. Faler v. Jordan, 44 Miss. 283; Currie v. Kurtz, 33 Miss. 24; Maxey v. Strong, 53 Miss. 280; 1 Greenl. on Ev., § 112, p. 128; Winship v. Beck, 5 Peter (U. S.), 520 Bank of Kentucky v. Brocking, 2 Litt., 41; Cavazos v. Treoni, 6 Wall., 775.

Where there is no evidence to show to whom the credit was given, the fact that the money borrowed by the partner goes to the use of the firm, as in this case, raises a presumption that the loan was made to him as a partner, and, if not rebutted, will render the firm liable. Parsons on Con., pp. 104, 105, and notes. Inasmuch as the note was not a negotiable note, there could be no indorsement of it. 1 Daniel on Neg. Inst., §§ 666, 709, 710, 713, 713a, 713b. Ringo was the agent of W. E. Ringo & Co. so far as the business was concerned, and the money having gone to the use of the firm, the firm cannot repudiate his act without restoring the money, even if he exceeded his authority. Fairley v. Nash, 70 Miss. 201.

The sixth, seventh and eighth instructions asked by appellant were properly refused, because W. E. Ringo & Co. were co-promisors and principal debtors, and were not in anywise relieved of liability by the extension of payment. There was certainly doubt on the facts of the case, and the peremptory instruction asked by appellant was properly refused. Swain v. Ins. Co., 52 Miss. 704; Dillon v. Patterson, 66 Ib., 204; Lowenstein v. Powell, 68 Ib., 73; Armour v. Bank, 69 Ib., 700. The appellant waited too long to complain of the intoxication of the jury. He should have asked for a mistrial, instead of taking the chances of a favorable verdict, and then moving for a new trial on this ground, when the case had gone against him. Berry et al. v. De Witt et al., 27 F. 724; State v. Tuller, 34 Conn. 280; Ice Machine Co. v. Trenton Hygiene Ice Co., 57 F. 901.

Argued orally by J. H. Wynn and W. L. Nugent, for the appelant, and W. G. Yerger, for the appellee.

OPINION

COOPER, C. J.

Foster brought this suit against W. E. Ringo individually, and against W. E. Ringo and W. P. Richardson, late partners in trade under their firm name of W. E. Ringo & Co., upon the following note:

"$ 3,800.

MOUND LANDING, MISS., April 3, 1893.

"On January 1 after date I promise to pay to the order of B. P. Foster thirty-eight hundred dollars, value received, with interest at the rate of eight per cent. per annum from maturity until paid.

(Signed) W. E. RINGO.

Indorsed on back: "We hereby waive notice, demand, protest and all other formalities. (Signed) W. E. RINGO & CO.

The declaration contains three counts. In the first, all parties are sued as makers. In the second, Ringo is sued as maker, and Ringo & Co. as indorsers. The third is a common count for money lent to the defendants or paid out and expended for their benefit.

The defendant, Ringo, made no defense, and a judgment by default was taken against him, from which no appeal is prosecuted. The appellant, Richardson, pleaded, under oath, that the name of the firm was not signed to the note as maker or indorser thereof by authority of said firm, and that the same was not the signature of said firm, and, to the third count, he pleaded non assumpsit. The said defendant further pleaded specially (1) that the name of Ringo & Co. was written on the back of said note as surety or accommodation indorser, and that, in August, 1894, the plaintiff, in consideration of security given him by Ringo, individually, extended the time for the payment of said note until November, 1894, without the...