Opinion
No. 39309.
October 25, 1954.
1. Sunday — note dated and received on secular day — signed on Sunday.
Where note was dated on a secular day, and payee received it on secular day, that endorsers had, unknown to payee, signed on a Sunday did not relieve them of liability.
Headnote as approved by Hall, J.
APPEAL from the circuit court of Washington County; ARTHUR JORDAN, Judge.
Willard L. McIlwain, Greenville, for appellants.
I. The appellee herein filed no written statement of any special matter which it intended to give in evidence in denial or avoidance of such special matter so alleged by the answer of the appellants, as required by Section 1475.5, paragraph four, of the Mississippi Code of 1942.
II. The appellee filed no assignments of error in the Circuit Court on its appeal from the decision of the County Court in favor of the appellants herein. State v. Carraway, 150 Miss. 263, 134 So. 846.
III. A contract entered into in this State on Sunday is contrary to public policy, and void. McIntosh v. Munson Road Machinery Co., 167 Miss. 546, 145 So. 731; Peebles v. Miles, 189 Miss. 623, 198 So. 29; Smith v. Mills, 199 Miss. 367, 24 So.2d 864; Ware v. Martin, 210 Miss. 500, 49 So.2d 832; Secs. 1475.5(4), 1616, Code 1942.
J.A. White, Durant, for appellee.
I. Denial by appellee that note was Sunday contract was not necessary under pleadings, and evidence of circumstances surrounding execution of note was properly admitted by trial court. Sec. 1475.5(4), Code 1942.
II. The note sued on is not a Sunday contract, within meaning of that term, and is valid as to party without knowledge that same was signed on Sunday. Collins v. Collins, 139 Iowa 703, 117 N.W. 1089, 18 L.R.A. (N.S.) 1176; Devitt v. Foster, 159 Miss. 687, 132 So. 182; Duggan v. Champlin, 75 Miss. 441, 23 So. 179; Hathaway v. Porter Royalty Pool, 296 Mich. 90, 295 N.W. 451, 138 A.L.R. 955; Pearl v. Cortright, 81 Miss. 300, 33 So. 72.
III. Appeal from County Court to Circuit Court is considered solely on record, and practice of Circuit Court of Washington County does not require assignment of errors, point not raised in lower court. Sec. 1616, Code 1942.
C.W. Younger, being indebted to appellee in the amount of $1,068.26, approached appellee's district sales manager at its office in Memphis, Tennessee, and obtained an agreement to liquidate this indebtedness by payments of $50.00 per month upon execution of a promissory note for the stated amount with acceptable co-makers. The note was furnished by appellee to C.W. Younger and was dated July 24, 1951, which was a secular day. He later obtained the signatures of appellants on this note and it was mailed back to appellee and was received by it at its Memphis office on Wednesday, August 8, 1951. After making some of the payments Younger defaulted and under the acceleration clause in the note appellee declared the entire note due and later brought suit against appellants for the balance due, with interest and attorney's fees as therein provided. Appellants' defense is that their signatures were actually placed on the note on a Sunday. It is not claimed that any representative of appellee was present at the time nor that appellee ever had any notice or knowledge that the note was signed on Sunday. The circuit court entered judgment for appellee and the Nerrens appeal, contending that the note was void and unenforceable because actually signed on Sunday and it is their position that this is true notwithstanding the fact that appellee had no notice or knowledge that the actual signing occurred on Sunday.
(Hn 1) This contention was answered by this Court in the case of Duggan v. Champlin, 75 Miss. 441, 23 So. 179, wherein it was held that notes and a deed of trust securing the same are not void because actually signed on Sunday, when they were drawn up and delivered to the signers on a secular day and were delivered back to the beneficiary on a secular day and when the beneficiary had no knowledge that the signatures were affixed on a Sunday. To the same effect is 50 Am. Jur. 843, Sundays and Holidays, Section 49.
Affirmed.
McGehee, C.J., and Kyle, Holmes and Gillespie, JJ., concur.