Southern Mining & Mineral Corporation v. Poythress

• Decision Date: 14 January 1929
• Docket Number: 27483
• Citation: 152 Miss. 293,120 So. 178
• Parties: SOUTHERN MINING & MINERAL CORPORATION et al. v. POYTHRESS. [*]
• Court: Mississippi Supreme Court

120 So. 178

152 Miss. 293

SOUTHERN MINING & MINERAL CORPORATION et al. v. POYTHRESS. ^[*]

No. 27483

Supreme Court of Mississippi

January 14, 1929

Division A

Suggestion of Error Overruled Feb. 11, 1929.

APPEAL from circuit court of Lauderdale county., HON. J. D FATHEREE, Judge.

Action by C. H. Poythress against the Southern Mining & Mineral Corporation and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Affirmed.

Reily & Parker, for appellants.

Appellants contend that it was error on the part of the court to grant the instruction requested by the appellee, as follows in part: "If you believe from the evidence that the check in this case was made payable to the Colorado Smelter and Mining Corporation at the instance of the endorsers, or some one in whose hands the note was left for the purpose of negotiating it, then this would be a sufficient consideration for the note and you should not find any verdict against the plaintiff by reason of any alleged failure of consideration." This instruction eliminates the question of whether or not this money was being furnished to the Colorado Smelter & Mining Corporation in the purchase of stock of this corporation by the appellee. The sole test in this case on the question of consideration as fixed by this instruction was whether or not the check in question was made payable to the Colorado Smelter & Mining Corporation at the instance of these appellants. The issue joined in this case on whether or not there was any consideration passing to the appellants was eliminated by this instruction.

Issue was taken on whether or not due notice as provided by law was given in this case and the evidence on this question was conflicting and left for the jury, yet, the court instructed the jury that if the note in question was signed and endorsed by these appellants and placed in their hands for the purpose of obtaining money thereon and that they did obtain this money as a loan from the plaintiff and directing that a check payable to the Colorado Smelter & Mining Corporation be issued and that this was done, then the jury must find for the plaintiff. We contend that even though a bona-fide loan unquestioned from every standpoint was made by the appellee here into the Southern Milling & Mineral Corporation and that the other appellants herein were endorsers, that a failure to give the notice provided by law would be a complete and sufficient defense, and yet the jury was instructed to disregard all evidence relative to notice in this matter and return a verdict for the plaintiff regardless of notice, if the loan was in fact made. See secs. 2843 and 2857, Hem. Code of 1927.

V. W. Gilbert and F. V. Brahan, also filed a brief for appellant.

Bozeman & Cameron, for appellee.

The question of notice of dishonor was not raised by the pleading. See sec. 1977, Code of 1906. Gresham v. Bank, 131 Miss. 20, 95 So. 65, in which the court specifically holds that under the section of the code above quoted, the defense of failure of notice of dishonor is not available, unless plead under oath. No plea under oath was filed, the endorsers contenting themselves with filing a mere plea signed by attorneys and not verified at all. We submit, therefore, that this completely disposes of any contention about notice of dishonor.

Plaintiffs contended that this note was just what it showed on its face to be; namely, a promissory note signed by the Southern Mining & Mineral Corporation and endorsed by the defendants, Robinson, Brahan and Grimes, for which he paid the sum of five thousand dollars and on which he was entitled to recover. According to him there was absolutely nothing to the contentions made by the defendants that the note was not what by its terms it appeared to be. The defendants attempted to develop an elaborate theory to the effect that this was not a loan at all by Poythress to the corporation, or the endorsers, but that they were merely endorsing this note in order to enable him to borrow some money with which he was to purchase stock in one of the various corporations involved. On this sharp conflict the jury decided the issues in favor of Mr. Poythress and his theory. Chief criticism is aimed at the instruction given to the plaintiff below. Of course, it is not proper to consider it alone, but it ought to be interpreted in connection with all of the other instructions of both sides.

OPINION

SMITH, C. J.

The appellee sued the appellants on a promissory note executed by the Southern Mining & Mineral Corporation, and indorsed by the other appellants, and from a judgment awarding him a recovery thereon the appellants have brought the case to this court.

A demurrer to the appellee's declaration, one of the grounds which is that the declaration failed to allege that notice of the dishonor of the note was given to the endorsers, was sustained, whereupon the declaration was amended so as to include an...