Oliver Finnie Grocery Co. v. Sumner

Mississippi Supreme Court October 15, 1895

Oliver Finnie Grocery Co. v. Sumner, 73 Miss. 248 (Miss. 1895)

Woods

Opinion of the Court

Woods, J.,

delivered the opinion of the court.

The finding of fact by the court below, as to the want of notice of Peery’s real interest in the notes sued on by the appellant, is concurred in by us; but the original bill should not have been dismissed on the ground of want of consideration for the transfer of the notes by Garnett & Bros, to appellant. *253Peery has no substantial reason to offer against the demand of appellants to have satisfaction of their claim against the Garnetts out of the Sumner notes, for the avowed object of Peery in indorsing and delivering the notes to the Garnetts was to enable them to borrow money to relieve their necessities to the amount, at least, of his indebtedness to them. True, the Garnetts did not actually borrow the money on the Sumner notes and pay it to Oliver Finnie Grocery Co., but they did relieve themselves to the amount of their indebtedness to that company by delivery of the Sumner notes to the company for that purpose. The identical result has been reached which would have followed if the money had been borrowed and then paid to Oliver Finnie Grocery Co. In effect, Peery stands precisely where he would have stood if the Garnetts had borrowed the money from anyone, and had then paid it over to the appellants. Peery confessedly owes on his note to the Garnetts more than enough to pay the demand of the appellants against the Garnetts, and, on the hearing, professed his desire to pay the balance due the Garnetts to whomsoever it might be due. True, Peery has in his possession his note for the $400 which he gave the Garnetts, but, except a credit of $45, it is wholly unpaid, for the credit of $80, indorsed upon the note, was placed there after Peery knew the Garnetts had parted with the Sumner notes.

Jayne de Watson, for the appellee,

Filed a suggestion of error to so much of the decision on appeal as reversed that portion of the decision of the chancellor denying to appellant the relief sought, and urged the following as grounds therefor:

*253No one can be wronged by permitting the appellant to resort to their security for payment of the amount of the Garnetts, indebtedness to it. The Garnetts have no interest whatever in the litigation, and Peery will then be in the situation in which he agreed to place himself when he delivered the Sumner notes to the Garnetts. The bill, as well as the cross bill, should have been retained by the court below, and full relief have been granted the appellant and Peery.

He versed <md rema/nded.

1. The appellant gave no consideration for the four $200 notes.

2. The Garnetts not having been made parties to the suit, the taking of the fund due by Peery on the $400 note to the Garnetts or their assigns is depriving the Garnetts or their assigns of their property without due process of law, and also depriving Peery of his property in like manner by forcing him to pay an indebtedness twice.

Suggestion of error overruled.

Reference

Full Case Name: Oliver Finnie Grocery Co. v. Joe Sumner
Cited By: 1 case
Status: Published
Syllabus: Promissory Notes. Indorsement. Consideration. Vendor’s lien. Equity. A vendee of land gave to his g-rantors his note for $400. in part payment of the purchase money, and afterwards sold the land for $1,200, taking from his grantee $200 in cash, and five notes for $200 each, all of which notes, including that for $400, were secured by a vendor’s lien. Having- collected one of the $200 notes, he transferred the other four to his grantors by indorsement in blank, to enable them to borrow money to relieve their necessities, at least to the extent of what he owed them on his $400 note; and they, thereupon, indorsed them to creditors of their own to secure an indebtedness not greater than the amount due on the $400 note, the creditors accepting them being- wholly ignorant of the agreement on which they were held. Held, that the consideration of the transfer to said creditors was sufficient, and that it was error to dismiss a bill filed by them for the subjection of the land to the payment of the four $200 notes, and the satisfaction of their debt out of the amount realized thereby, and also error to dismiss the cross bill of the first vendee, whose rights in said notes were subject only to those of the complaining creditors.