Opinion
No. 27483.
January 14, 1929. Suggestion of Error Overruled February 11, 1929.
1. BILLS AND NOTES. Failure of defendants to swear to plea denying notice of dishonor relieved plaintiff of proving notice was given ( Hemingway's Code 1927, section 1709).
Failure of defendants in action on note to swear to their plea denying notice of dishonor, as required by Code 1906, section 1977 (Hemingway's Code 1927, section 1709), relieved the plaintiff of proving that such notice had been given.
2. TRIAL. Error in instruction that check given to another at instance of indorsers was sufficient consideration for note was cured by another instruction thereon.
Instruction in action on note, relative to fact that, in case check by payee was made payable to another at instance of indorsers, it would be sufficient consideration, though erroneous under evidence, was cured by another instruction specifically charging jury to find for plaintiff in event they believed he loaned the money to defendants and made check therefor payable to another at their request.
APPEAL from circuit court of Lauderdale county, HON. J.D. FATHEREE, Judge.
Reily Parker, for appellants.
Appellants contend that it was error on the part of the court to grant the instruction requested by the appellee, as follows in part: "If you believe from the evidence that the check in this case was made payable to the Colorado Smelter and Mining Corporation at the instance of the endorsers, or some one in whose hands the note was left for the purpose of negotiating it, then this would be a sufficient consideration for the note and you should not find any verdict against the plaintiff by reason of any alleged failure of consideration." This instruction eliminates the question of whether or not this money was being furnished to the Colorado Smelter Mining Corporation in the purchase of stock of this corporation by the appellee. The sole test in this case on the question of consideration as fixed by this instruction was whether or not the check in question was made payable to the Colorado Smelter Mining Corporation at the instance of these appellants. The issue joined in this case on whether or not there was any consideration passing to the appellants was eliminated by this instruction.
Issue was taken on whether or not due notice as provided by law was given in this case and the evidence on this question was conflicting and left for the jury, yet, the court instructed the jury that if the note in question was signed and endorsed by these appellants and placed in their hands for the purpose of obtaining money thereon and that they did obtain this money as a loan from the plaintiff and directing that a check payable to the Colorado Smelter Mining Corporation be issued and that this was done, then the jury must find for the plaintiff. We contend that even though a bona-fide loan unquestioned from every standpoint was made by the appellee here into the Southern Mining Mineral Corporation and that the other appellants herein were endorsers, that a failure to give the notice provided by law would be a complete and sufficient defense, and yet the jury was instructed to disregard all evidence relative to notice in this matter and return a verdict for the plaintiff regardless of notice, if the loan was in fact made. See secs. 2843 and 2857, Hem. Code of 1927.
V.W. Gilbert and F.V. Brahan, also filed a brief for appellant.
Bozeman Cameron, for appellee.
The question of notice of dishonor was not raised by the pleading. See sec. 1977, Code of 1906. Gresham v. Bank, 131 Miss. 20, 95 So. 65, in which the court specifically holds that under the section of the code above quoted, the defense of failure of notice of dishonor is not available, unless plead under oath. No plea under oath was filed, the endorsers contenting themselves with filing a mere plea signed by attorneys and not verified at all. We submit, therefore, that this completely disposes of any contention about notice of dishonor.
Plaintiffs contended that this note was just what it showed on its face to be; namely, a promissory note signed by the Southern Mining Mineral Corporation and endorsed by the defendants, Robinson, Brahan and Grimes, for which he paid the sum of five thousand dollars and on which he was entitled to recover. According to him there was absolutely nothing to the contentions made by the defendants that the note was not what by its terms it appeared to be. The defendants attempted to develop an elaborate theory to the effect that this was not a loan at all by Poythress to the corporation, or the endorsers, but that they were merely endorsing this note in order to enable him to borrow some money with which he was to purchase stock in one of the various corporations involved. On this sharp conflict the jury decided the issues in favor of Mr. Poythress and his theory. Chief criticism is aimed at the instruction given to the plaintiff below. Of course, it is not proper to consider it alone, but it ought to be interpreted in connection with all of the other instructions of both sides.
The appellee sued the appellants on a promissory note executed by the Southern Mining Mineral Corporation, and indorsed by the other appellants, and from a judgment awarding him a recovery thereon the appellants have brought the case to this court.
A demurrer to the appellee's declaration, one of the grounds which is that the declaration failed to allege that notice of the dishonor of the note was given to the indorsers, was sustained, whereupon the declaration was amended so as to include an allegation that this notice was given.
One of the appellants' pleas, among other things, denied that notice of dishonor had been given to the indorsers of the note. This plea was not sworn to, as required in section 1977, Code of 1906 (Hemingway's Code 1927, section 1709). By consent, issue in short was joined on this plea.
The appellee's evidence is to the effect that the note was executed to him for a loan to the Southern Mining Mineral Corporation, and that he gave to the corporation's agent a check for the money loaned, payable at this agent's request to the Colorado Smelter Mining Corporation, which check was collected by that corporation.
The evidence for the appellants is to the effect that the note was executed for the accommodation of the appellee, for the purpose of enabling him to borrow the amount for which the note was made, for the purpose of purchasing stock in the Colorado Smelter Mining Corporation, in which all parties to the note were interested, and that the check given by the appellee to the Colorado Smelter Mining Corporation was for stock in that corporation. It does not appear from the appellants' evidence how the note got into the appellee's possession. It does appear therefrom that no stock in the Colorado Smelter Mining Corporation has been issued to the appellee — exactly why is not clear therefrom.
Two of the appellants' contentions are: First, the instructions to the jury granted to appellee permitted him to recover against the indorsers without finding that notice of the dishonor of the note had been given to them; and, second, the court erred in instructing the jury for the appellant "that the burden of proving failure of consideration rests upon the defendants and that the law presumes that the note was executed for a valuable consideration; and if you believe from the evidence that the check in this case was made payable to the Colorado Smelter Mining Corporation at the instance of the indorsers, or some one in whose hands the note was left for the purpose of negotiating it, then this would be a sufficient consideration for the note, and you should not find any verdict against the plaintiff by reason of any alleged failure of consideration."
The failure of the appellants to swear to their plea denying notice of dishonor relieved the appellee of proving that such notice had been given. Section 1977, Code 1906 (Hemingway's Code 1927, section 1709); Yazoo Delta Mort. Co. v. Harlow, 145 Miss. 221, 110 So. 585; Taylor v. Ross, 129 Miss. 536, 92 So. 637; Thigpen v. Miss. Central R. Co., 32 Miss. 347.
The appellee's evidence discloses that after the maturity of the note he demanded payment thereof from the indorsers, and they promised so to do. This was denied by the indorsers, who testified themselves and stated that no such request was made of them and no such notice of the nonpayment of the note was given to them. The appellant requested that the evidence tending to show that no notice of dishonor had been given to the indorser be excluded, for the reason that, on the "pleadings in the case . . . no defense can be predicated on any alleged failure to present for payment and notify indorsers of dishonor," but the court below declined so to do, and the evidence was probably competent in support of the appellants' denial that the indorsers had been requested to pay the note, and had promised so to do.
The charge in the instruction, that, if the jury believed "the check in this case was made payable to the Colorado Smelter Mining Corporation at the instance of the indorsers, or some one in whose hands the note was left for the purpose of negotiating it, this would be a sufficient consideration for the note," is erroneous, in view of the appellants' contention that the check was given by the appellee to the Colorado Smelter Mining Corporation in payment of stock purchased by him in that corporation. This error could hardly have misled the jury, in view of the clear-cut issue on this point presented by the evidence, and was cured by another instruction for the appellee, in connection with which the other must be read, which specifically charged the jury to find for him in event they believed he loaned the money to the appellants on the note and made the check therefor payable to the Colorado Smelter Mining Corporation at their request.
The appellants' instructions also clearly presented the issue which the jury was called on to try.
Affirmed.