Opinion
No. 42602.
March 4, 1963.
1. Bills and notes — discharge — release by holder of prior and unlimited endorser released secondarily liable endorsers.
Where release of note's principal endorser, whose endorsement was individual, unqualified and unlimited, had not been consented to by all secondarily liable endorsers, they were released.
Headnote as approved by McGehee, C.J.
APPEAL from the Chancery Court of Jackson County; L.C. CORBAN, Chancellor.
Ebb J. Ford, Jr., Gulfport; Deutsch, Kerrigan Stiles, New Orleans, La., for appellant.
I. The Court erred in granting shareholders signing the note the rights of ordinary successive endorsers. Fish Meal Co. v. Brondum, 242 Miss. 573, 135 So.2d 825; Jefferson Lumber Co. v. Powers, 223 Ala. 63, 134 So. 464; Kessel v. Murray, 197 Iowa 17, 196 N.W. 591; Quackenboss v. Harbaugh (Mo.), 249 S.W. 940; Trego v. Cunningham's Estate, 267 Ill. 367, 108 N.E. 350; Secs. 120(3)(5), 161(3)(5), Code 1942; Beutal, Brannon Negotiable Instrument Law (7th ed.), Sec. 120(3) p. 1143.
II. Alternately, the Court erred in releasing appellees against a reservation of rights sanctioned by the NIL, and without regard to Walker's contribution. Thompson v. Gore, 180 Miss. 560, 178 So. 81; Wandelohr v. Logan, 21 Ky.L.Rep. 1773, 56 S.W. 412; Anno. 53 A.L.R. 1455.
III. Appellees were not released fully, even if partially released. Comans v. Tapley, 101 Miss. 203, 57 So. 567; Devoy Kuhn Coal Coke Co. v. Huttig, 174 Iowa 357, 156 N.W. 412; Perkins v. Sanders, 56 Miss. 733; Sacramento Bank v. Pacific Bank, 124 Cal. 147, 56 P. 787; 10 C.J.S., Bills and Notes, Sec. 470 p. 1021; 13A Fletcher, Cyclopedia Corporations (perm. ed.), Sec. 6553 p. 679.
Robert W. Oswald, Pascagoula, for appellee.
I. The promissory note upon which appellant obtained judgment was a negotiable instrument. Fish Meal Co. v. Brondum, 242 Miss. 573, 135 So.2d 825.
II. The legal rights of a party cannot be adversely affected by a judicial proceeding to which such person was not a party, to which he did not acquiesce, agree or consent and in which he did not participate. Fish Meal Co. v. Brondum, supra; Thompson v. Gore, 180 Miss. 560, 176 So. 81.
III. The Supreme Court will not reverse the decision of the Chancellor unless it finds the same to be manifestly wrong. Fish Meal Co. v. Brondum, supra.
IV. The Court will not change the liabilities of the parties as agreed upon among themselves Cahn v. Wright, 119 Miss. 107, 80 So. 194; Fish Meal Co. v. Brondum, supra; Thompson v. Gore, supra; Secs. 109, 161, Code 1942; 10 C.J.S., Bills and Notes, Sec. 470.
(Hn 1) The issue in this case was fully covered and determined by us in the case of Fish Meal Co. v. Brondum, et al, 242 Miss. 573, 135 So.2d 825, when on the interlocutory appeal therein we held that the release of the primary endorser, whose endorsement was individual, unqualified and unlimited, resulted in the release of all of the endorsers who were secondarily liable. We affirmed and remanded the case in order that the chancellor might determine as an issue of fact whether or not the release of the principal endorser on the note, upon his payment of $44,000 thereon, was consented to by the remaining defendants. That issue has since been determined in the negative by the chancellor and we affirm his decree in that behalf.
Affirmed.
Arrington, McElroy, Rodgers, and Jones, JJ., concur.