Sivley v. Williamson

• Decision Date: 04 December 1916
• Docket Number: 18445
• Citation: 112 Miss. 276,72 So. 1008
• Court: Mississippi Supreme Court
• Parties: SIVLEY v. WILLIAMSON

72 So. 1008

112 Miss. 276

SIVLEY v. WILLIAMSON

No. 18445

Supreme Court of Mississippi

December 4, 1916

APPEAL from the circuit court of Newton county, HON. J. D. CARR Judge.

Suit by W. B. Sivley against J. W. Williamson. From a judgment for defendant, on peremptory instruction, plaintiff appeals.

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

Reversed and remanded.

E. L Trenholm, attorney for appellant.

It would be idle to cite authorities upon the proposition that the plaintiff made out a prima-facie case upon introducing in evidence a note (admittedly executed by defendant) payable to bearer, which note was in due legal form.

The question, therefore, for determination, is whether the defendant, by his evidence, met and overcame this prima-facie case. There are three considerations: (1) on the face of the pleadings, coupled with defendants evidence; (2) was payment made to the plaintiff; (3) Was payment to the bank satisfaction of plaintiff's demand because he was an officer and director of the bank. It was upon this last question that the trial court gave the instruction for the defendant, and in this we say he was surely in error.

Was payment made to the plaintiff.

While all the defensive evidence for the defendant was upon the theory of payment, it is conclusive from the evidence of the witness Williamson that payment was to the bank and not to the plaintiff. Witness Munn, in his vindictive testimony "thinks" payment was made to plaintiff. This conflict is wholly in the testimony offered by defendant and, if a question at all, was one for the jury. But Williamson, defendant, and his receipt, are absolutely conclusive of this question. Payment was to the bank.

J. S. Rhodes, for appellant.

The appellant made out his case, and there was no testimony to show that the note had ever been paid to him, in fact the very receipt itself given appellee by the said bank, shows that payment was made to the bank, and he was therefore entitled to the peremptory instruction asked for and refused by the court.

The court erred in granting the appellee a peremptory instruction. In the first place this instruction should have been given the appellant, in which event it could not have been given to the appellee also.

According to the case of I. C. R. R. v. State, 48 So. 561, "Where a case is disposed of by a peremptory instruction, an assignment that the court erred in giving it brings the entire case up for review, and permits arguments for and against such exception to be made for the first time on appeal," we are permitted to review the entire case and to make new arguments in this court. I therefore wish to call the court's attention to this proposition, there was an issue of fact which should have been passed upon by a jury, assuming that the contention of the appellee is correct. There is testimony in the record on page 17 to show that the appellant was the general manager of the said bank in addition to being vice-president and a director, and if he was, the lower court no doubt was influenced by the idea that as such, he should have known that the note was paid to the said bank. The testimony for the appellant shows that Mr. W. B. Sivley was merely the vice-president and a director in said bank. There is therefore a material variance between important facts, in the case, and this matter should have been passed upon by a jury, and the lower court erred because is was not submitted to a jury.

As the record shows that the appellant owned the note as an individual, and that he did not have any actual knowledge of the fact that the appellee had paid it to the said bank, and that as the appellant did not occupy such a position with the said bank that the knowledge of the payment of the note to the bank could be imputed to him, it was therefore error for the lower court to grant the appellee a peremptory instruction, and the trial judge likewise committed serious error in not granting the appellant a peremptory instruction. Wherefore the appellant prays that the judgment of the lower court may be reversed and that a judgment be entered in this court for him for the amount sued for together with reasonable attorneys' fees and costs.

Appellant respectfully contends though that should the court not render this kind of a verdict, it should reverse and remand the case for a new trial.

W. I. Munn, for appellee.

There is no dispute whatever about the payment of the note; J. W Williamson did not nor has he ever denied the execution and the delivery of this note for four hundred and ten dollars to the Merchants & Farmers Bank, but after it was executed and delivered and a short time after it was due, he went to the usual place of business of the said Merchants & Farmers Bank with the money in his hand and paid it to the said Merchants & Farmers Bank, delivering the cash to H. F. Sivley, cashier of the said bank and who was also the son of the appellant, W. B. Sivley, and also the son of Mrs. W. B. Sivley, the wife of the appellant. Williamson also testified in his examination on the witness stand that he had considerable business with the said Merchants & Farmers Bank on or about this time, and that also the appellant, W. B. Sivley was at that time vice-president of the said Merchants & Farmers Bank, and was also the general manager thereof, and was at that time one of its principal stockholders and was also one of its principal creditors; Williams also testified that when he would go to the bank on or about the time this note was paid, that is to say, at the...