Opinion
No. 3064.
May 1, 1931.
Appeal from the District Court of the United States for the Western District of Virginia, at Big Stone Gap; Henry Clay McDowell, Judge.
See, also, 43 F.2d 549.
S.H. Sutherland, of Clintwood, Va. (S.H. George C. Sutherland, of Clintwood, Va., on the brief), for appellant.
B.H. Sewell, of Jonesville, Va., and E.M. Fulton, of Wise, Va., for appellee.
Before PARKER and NORTHCOTT, Circuit Judges, and COLEMAN, District Judge.
This was a suit on certain promissory notes. Defendant contended that he had been released from liability thereunder by plaintiff's acceptance under a deed of assignment which he had executed for the benefit of creditors. Plaintiff contended that it had not accepted under the deed of assignment, and that, if what was done be construed as an acceptance thereunder, it was not binding, because made under mistake as to the legal effect of certain instruments. The judge below ruled that plaintiff had not accepted the deed of assignment, and permitted recovery on the notes on condition that plaintiff disclaim any rights under it.
A majority of the court are of opinion that what was done by plaintiff amounted to an election to take under the deed of assignment, but that this election was made as a result of mistake, and that plaintiff, for that reason, is not bound thereby, where, upon acquiring knowledge of its rights, it withdrew its claim made under the deed of assignment. The judgment below will accordingly be affirmed.
Affirmed.