Weston v. Merchants' Bank & Trust Co
| Decision Date | 29 April 1935 |
| Docket Number | 31600 |
| Citation | 161 So. 145,173 Miss. 34 |
| Parties | WESTON et al. v. MERCHANTS' BANK & TRUST CO |
| Court | Mississippi Supreme Court |
Suggestion Of Error Overruled, June 10, 1935.
APPEAL from the circuit court of Hancock county, HON. W. A. WHITE Judge.
Action by the Merchants' Bank & Trust Company against E. C Weston and others. From a judgment for plaintiff, defendants appeal. Affirmed.
Affirmed.
Robert L. Genin and Edward I. Jones, both of Bay St. Louis, for appellants.
It is a fundamental rule of law that a material allegation of a declaration must be proved without conflict in the evidence to entitle plaintiff to a peremptory instruction.
Holmes v. Preston et al., 12 So. 202; Powell v. Plant, 23 So. 399; True-Hixon Lbr. Co. v. McDonough, 123 So. 855.
The declaration charged that the appellants sold the notes for full value. The proof without contradiction shows that the appellants transferred only their three-fifths interest and only received three-fifths of the amount of the face value of the notes less a discount.
Section 1723, Mississippi Code of 1930, provides that all foreign administrators must file a certified copy of their appointment and qualifications to act and also a certificate of the judge of the court which appointed them to account for the thing sued for or received. Of course there was no certificate of the judge filed showing that John C. Pye as administrator has authority to endorse or transfer the notes because he did not have such authority and any attempt to transfer them was void.
City Savings & Trust Co. v. Branchieri, 72 So. 196.
Where an instrument is payable to the order of two or more payees or endorsees who are not partners, all must endorse unless the one endorsing has authority to endorse for the others.
Sections 2697 and 2705, Code of 1930.
Section 2697 requires a note payable to the order of two or more payees to be endorsed by all, otherwise there is no endorsement.
Chitty on Bills, 13th Am. Ed., 201, 232.
If one undertakes to endorse, he transfers only his interest by way of equitable assignment.
Norton on Bills & Notes (4 Ed.), page. 178; Carvick v. Vickery, 2 Doug. 653; Smith v. Whiting, 9 Mass. 334; Dwight v. Pease, 3 McLean 94, Fed. Case No. 4217; Daniel Negotiable Inst., pars. 684, 701a; 2 Daniel on Negotiable Instruments (7 Ed.), by T. H. Calvert, pars. 758 and 786; Bennet v. McGaughey, 3 H. 192.
Authorities are all agreed that joint payees, not partners, named in a note, must endorse to transfer the title to the entire instrument.
Dwight v. Pease, 3 McLean 94, Fed. Case No. 4217; Sanders v. Blain, 6 J. J. Marsh, 446, 22 Am. Dec. 86; Karsner v. Cooper, 195 Ky. 8, 25 A.L.R. 159, 214 S.W. 346; Ryhiner v. Feickert, 92 Ill. 305, 34 Am. Rep. 130; Smith v. Whiting, 9 Mass. 334; Kaufman v. State Sav. Bank, 151 Mich. 6, 18 L.R.A. (N.S.) 630, 123 Am. St. Rep. 259, 114 N.W. 863; Haydon v. Nicoletti, 18 Nev. 290, 3 P. 473; Wood v. Wood, 16 N. J. L. 428; Allen v. Corn Exch. Bank, 87 A.D. 335, 84 N.Y.S. 1001; First Nat. Bank v. Gridley, 112 A.D. 398, 98, N.Y.S. 445; Johnson v. Mangum, 65 N.C. 146; Edgar v. Haines, 141 N.E. 837; Gardner v. Wiley, 46 Or. 96, 79 P. 341; Roseborough v. Gorman, 6 Tex. 313; Brown v. Dickenson, 27 Gratt. 693.
We were entitled to a new trial after the court found by its own written opinion that only four of the five payees had endorsed the notes.
City Savings & Trust Co. v. Branchieri, 72 So. 196.
R. A. Wallace, of Gulfport, for appellee.
The defendants, appellants here, filed no plea under oath denying any of the allegations of the declaration and the exhibits attached to it, as provided by section 1587, Code of 1930.
The judgment of the civil district court of the parish of Orleans state of Louisiana, is a judgment of a court of competent jurisdiction, having full and exclusive jurisdiction of the parties and the subject-matter adjudicated, and full faith and credit must be given to it as provided by the provisions of article 4, section 1, of the Constitution of the United States.
The assignee of any chose in action may sue for the recovery of same in his own name, if the assignment be in writing.
Sections 505, 2028, 2676, 2680, 2682, 2686, 2687, 2697, 2707, 2711, 2716 and 2721, Code of 1930.
Every endorser who endorses without qualification, warrants to all subsequent holders in due course: (1) that matters and things mentioned in subdivisions 1, 2 and 3 of the next preceding section (2721); and (2) that the instrument is at the time of his endorsement valid and subsisting.
And, in addition, he engaged that on due presentment, it shall be accepted or paid, or both, as the case may be, according to its tenor, and that if it be dishonored, and the necessary proceedings, on dishonor be duly taken, he will pay the amount to the holder, or to any subsequent endorser who may be compelled to pay it.
Sections 2722, 2854 and 3828, Code of 1930.
On the question of the liability of the appellants as endorsers of the notes in suit, see sections 2719, 2721, 2722, 2724 and 2854, of the Code of 1930.
Hawkins v. Shields, 100 Miss. 739, 57 So. 4.
Upon the dissolution of the partnership composed of J. C. Pye, one of the payees and endorsers, and W. F. Foley, one of the payees, by the death of W. F. Foley, the legal title to the partnership property vested, by operation of law, in J. C. Pye, the surviving partner. As to the beneficial interest in such property, J. C. Pye and Foley's representative were tenants in common.
Cockerham v. Bosley, 26 So. 814; Cyc., Executors and Administrators, page 189; Mason's, Admr., v. Beasley's, Admr., 27 Miss. 106; Stewart v. Burkhalter, 28. Miss. 396; Hanway v. Robertshaw, 49 Miss. 758.
At the time of the negotiation, sale, and endorsement of the promissory notes in suit to the appellant, J. C. Pye, as administrator of the estate of W. F. Foley, deceased, had and owned the legal title to the one-fifth interest of the deceased in and to the notes, and, as such administrator, he was authorized by law to sell, endorse and deliver the notes to the appellee for a valuable consideration.
Owen v. Moody, 29 Miss. 79; Grist v. Forehand, 36 Miss. 69; Boyer v. Hodges, 45 Miss. 78; Engelman et al. v. Coco, 88 So. 610; Succession of Gassie, 7 So. 454.
The judgment of the civil district court of the parish of Orleans, state of Louisiana, approving the final account of the administrator of the estate of W. F. Foley, deceased, approving the act of the administrator in the sale of the interest of the decedent in and to the notes in suit, and approving the distribution of the proceeds by the administrator to the heirs at law of the decedent, is a judgment of a court of competent jurisdiction, having full and complete jurisdiction of the parties and the subject-matter, and is not subject to collateral attack.
Article 4, section 1, Constitution of the United States; McKee v. Whitten, 25 Miss. 31; Stubblefield v. McRaven, 5 S. & M. 130; Cason v. Cason, 31 Miss. 578; Conwill v. Conwill, 61 Miss. 202; State ex rel. Caire et al. v. Judge of 23rd District Court, 10 So. 178; Ford's Heirs v. Mills, 14 So. 845; Hibernia Bank & Trust Co. v. Whitney, 48 So. 314.
By their plea of the general issue, the appellants admitted everything essential to the legal right of the appellee to recover of and from them the full amount remaining due upon the notes, except that the plaintiff, appellee here, had the legal title to the notes.
Section 1587, Code of 1930; Cook v. Martin, 5 S. & M. 379; Hemphill v. Bank of Alabama, 6 S. & M. 44; Anderson v. Tarpley, 6 S. & M. 507; Robinson v. Bohn Mfg. Co., 71 Miss. 95, 14 So. 460; Wanita Woolen Mills v. Rollins, 75 Miss. 253, 22 So. 819; Kendrick v. Kyle, 78 Miss. 278, 28 So. 951; Hibernia Bank & Trust Co. v. Smith, 89 Miss. 298, 42 So. 345; Quick v. Littlejohn, 100 So. 531; Dawsey v. Kirven, 83 So. 338; American Trust & Savings Bank v. Perkins, 108 Miss. 834, 67 So. 481.
The notes being negotiable paper, the legal title thereto, and not the beneficial interest therein, controls as to proper parties plaintiff in suits for the collection of the notes.
Section 2707, Code of 1930; Dawsey v. Kirven, 83 So. 338; American Trust & Savings Bank v. Perkins, 108 Miss. 834, 67 So. 481; Jenkins v. Sherman, 77 Miss. 884, 28 So. 726.
The defendants, appellants here, have no legal or beneficial cause of action against the plaintiff, appellee here, arising out of any matter set forth in their written notice of special affirmative matter to be proved under their plea of the general issue, which is indispensable to the maintenance of the defense sought to be maintained by them in this, an action at law.
Eckford v. Hogan, Admx., 44 Miss. 398; Newell v. Fisher, Rec'r., 24 Miss. 392; Sections 514 and 515, Code of 1930; Walker v. Hall, 66 Miss. 390, 6 So. 318.
Argued orally by Robert L. Genin and Edward I. Jones, for appellant, and by R. A. Wallace, for appellee.
Appellee Merchants' Bank & Trust Company of Bay St. Louis, Mississippi, brought an action at law against E. C. Weston, D. R. Weston, and C. W. Weston, residents of Hancock county, Mississippi, to recover a balance due on two promissory notes. The notes were dated September 17, 1927, were for nine thousand three hundred seventy-five dollars each, and were executed by A. K. Roy of New Orleans, Louisiana, payable at the Hancock County Bank of Bay St. Louis, Mississippi, to the order of C. W. Weston, E. C. Weston, D. R. Weston, J. C. Pye, and W. F. Foley. The Merchants' Bank & Trust Company purchased these notes for value, and on the reverse sides thereof appear the following indorsements: Pye,...
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