White v. Post
| Citation | 91 Miss. 685,45 So. 366 |
| Decision Date | 27 January 1908 |
| Docket Number | 13,074 |
| Court | United States State Supreme Court of Mississippi |
| Parties | ALBERT B. WHITE v. FRANK D. POST ET AL |
FROM the circuit court of Leflore county, HON. SIDNEY M. SMITH Judge.
Post and another, doing business as general agents of the Mutual Life Insurance Company, under the copartnership name of Post & Bowles, the appellees, were plaintiffs in the court below White, the appellant, was defendant there. The suit was in assumpsit on a promissory note. From a judgment in plaintiff's favor, defendant appealed to the supreme court.
The case was tried before the court, on an agreed statement of facts, substantially set forth in the opinion of the court, a jury being waived.
Laws 1898, ch. 5, in force at the time the note sued on was executed, levied a privilege tax on each local insurance agent soliciting life insurance, and the statutes provided that all contracts made with any person liable to the tax and who had not paid it in reference to the business carried on in disregard of the statute, should be null and void so far as such person might base a claim upon them, and that a suit should not be maintainable in favor of any such person or on any such contract.
Reversed and remanded.
Gwin & Mounger, for appellant.
Since the local insurance agent, Bray, had not paid the privilege tax required by Laws 1898, ch. 5, he was, at the time he solicited the insurance and received the appellant's promissory note, conducting his business of insurance in disregard of the statute. No one will contend that he himself could sue on the note. If he could not sue, neither can the appellees, to whom he assigned the note; they are in like condition as he. The cases of Montjoy v. Bank, 76 Miss. 402; 24 So. 870, and Deans v. Robertson, 64 Miss. 195, 1 So. 159, are decisive of this case.
Appellees contend that the transaction was between the appellant, the insured, and the insurance company, and that the failure of the agent, Bray, to pay the tax does not affect the right of the general agents, Post & Bowles, to maintain suit on the note, but there is no merit in the contention. The insurance company never owned the note; it was never delivered to the company; the company is not suing, and could not sue, upon it. The insurance company was paid by the appellees, and has no interest in the note. It is undisputed that the appellees received the note from the local agent, Bray, and, in consideration thereof, paid Bray his commissions and the insurance company the balance of the premium due, and appellees own and hold the note. It was never contemplated that the insurance company should hold the note. The transaction, as regards appellant, was entirely with Bray in so far as the acceptance of the note was concerned. Otherwise Bray would not have endorsed the note when he transferred it to Post & Bowles.
The fact that the note is payable to bearer does not affect the invalidity of the note. "The bearer of a note containing a contract founded on a violation of any principle of public policy, or rule of positive law, occupies no better situation than any other person holding such paper." Montjoy v Bank, supra.
T. M. Whetstone, for appellees.
Neither Laws 1898, ch. 5, nor the cases of Montjoy v. Bank, 76 Miss. 402; s.c., 24 So. 870, and Deans v Robertson, 64 Miss. 195, s.c., 1 So. 159, cited by learned counsel for appellant, apply to the present case. The two parties to the contract, in the execution of which the note in issue was given were White and the Mutual Life Insurance Company. The insurance company agreed to insure the life of White for a certain amount, and White agreed to pay a certain premium for such insurance. Appellant's contention that the contract was between Bray and White is unsound. In pursuance of the contract between the insurance company and White the company issued the policy to White and he gave his note for the first premium. To whom was the note actunally given? To whom did White actually pay the first premium? The note was given to the insurance company by delivery to its representative, Bray, who transmitted it to the general agents for his territory, the appellees, Post & Bowles, who accepted it in payment of the first premium on the policy and disposed of it in accordance with their agreement with the insurance company by paying Bray his commissions as agent, and, after deducting their own commissions, applied the balance to the company, appellees themselves keeping the...
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