Union Station Trust Co. v. Bostick

• Decision Date: 05 November 1923
• Docket Number: 23522
• Citation: 133 Miss. 627,98 So. 105
• Court: Mississippi Supreme Court
• Parties: UNION STATION TRUST CO. v. BOSTICK

98 So. 105

133 Miss. 627

UNION STATION TRUST CO. v. BOSTICK

No. 23522

Supreme Court of Mississippi

November 5, 1923

Division A

On Suggestion of Error, Dec. 17, 1923.

APPEAL from circuit Court of Jasper county, HON. W. L. CRANFORD Judge.

Action by the Union Station Trust Company against J. H. Bostick. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded. Suggestion of error sustained.

W. S. Welch, for appellant.

The note was payable in the state of Missouri and therefore the laws of Missouri govern. Coffman v. Bank, 41 Miss 212. Under the statutes of Mississippi, our courts of course take judicial notice of the laws of Missouri and the court knows judicially that Missouri has adopted the Uniform Negotiable Instruments Acts, which is chapter 244 of the Laws of Mississippi of 1916.

The plaintiff is a holder as defined in section 119 of the Act, the plaintiff having possession of the note. The Uniform Negotiable Instruments Act herein cited is simply declaratory of the law merchant, which was in effect in Missouri and most of the other states before the adoption of the Uniform Negotiable Instruments Act.

From "Bills and Notes," 8th Corpus Juris, section 1060, I quote as follows: "A plea of payment or satisfaction is of course a good defense between the original parties to a note, or between parties having only their rights; but since it is the duty of a party paying a note or making a partial payment thereon to take up the paper or have the payment made indorsed thereon, it follows that a defense of payment, when these precautions have not been observed, cannot be urged as against a bona-fide holder. So a payment to the original payee of a note who had no authority from the transferee to accept payment and did not have possession of the note is no defense against the transferee, although he acquired the note after maturity."

No brief for appellee filed with court.

OPINION

ANDERSON, J.

Appellant, Union Station Trust Company, a banking corporation under the laws of the state of Missouri, domiciled at St. Louis in said state, sued appellee, J. H. Bostick, in the circuit court of Jasper county upon a promissory note alleged to have been executed by the latter to Howell & Co., from whom appellee had become the holder in due course before maturity. After the close of the evidence, the court directed a verdict for appellee, and refused the request of the appellant to direct a verdict for it. A judgment was accordingly entered upon said verdict, from which appellant prosecutes this appeal.

Appellant made the following case by its declaration. On the 10th of September, 1920, appellant executed and delivered to Howell & Co., of St. Louis, Mo., his promissory note as follows:

"$ 2000.00.

Bay Springs, Miss., Sept. 10, 1920.

"Ninety days after date I promise to pay to the order of Howell & Company Two Thousand and no/100 dollars for value received, negotiable and payable without defalcation or discount, with interest at the rate of seven percent. per annum from date, payable at St. Louis, Missouri.

"[Signed]

J. H. BOSTICK."

Said note was indorsed on its back without a date as follows:

"Howell & Company, by George H. Howell."

Before maturity appellant purchased said note in due course of business, paying value therefor without notice of any defense thereto. Appellee refused payment, and suit was brought.

To this declaration appellee interposed three pleas: (1) Admitting the execution of the note sued on, and averring that before maturity appellee had fully paid off and discharged said note, both principal and interest, to the payee, Howell & Co.; (2) averring that appellee had no notice of any kind or character whatever prior to its payment by him of said note of the alleged transfer and assignment thereof to appellant; (3) setting out that said note had been transferred and assigned by the original payee therein, Howell & Co., to appellant at a time subsequent to the maturity thereof, namely, subsequent to December 10, 1920.

Appellant demurred to the pleas 1 and 2 on the ground that they presented no defense, which demurrer the court overruled. Thereupon by consent of the parties said pleas were to be treated in the trial as at issue.

Upon the trial appellant introduced the note sued on, including the indorsement on its back, and rested. Appellee, who was the only witness offered in his behalf, testified that before the maturity of said note he had fully paid off and discharged same, making such payment to the payees therein, Howell & Co., who, although failing to produce said note when said payments were made, stated at the time of the making of each of them that they, Howell & Co., were still the owners and holders of said note, and that, when the final payment was made upon appellee demanding the surrender and cancellation of the note, said payees, Howell Co., still claimed to own and have the custody of the note, and agreed to surrender and cancel the same as soon as they could get it from their office.

All of appellee's evidence was objected to by appellant, whose objection was overruled by the court.

Appellant contends that it made a case for a directed verdict simply by the introduction of the note sued on and the blank indorsement of the payees therein without date on its back; that such blank indorsement carried with it, in the absence of evidence to the contrary, the presumption that appellant was the purchaser of said note for value in due course before maturity without notice of any defense thereto.

On the other hand, appellee contends, and the trial court adopted that...