DIVELBISS v. JONES ET AL

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 30234.

Attorney(S)

Loving Loving, of Columbus, for appellant. The indorsement in this case is a general indorsement in due course. Divelbiss v. Burns, 161 Miss. 724, 138 So. 346. A written indorsement was necessary on this instrument, it being payable to order and not a bearer paper, and the contract of indorsement on the back thereof must prevail, and until delivered and accepted there was no contract, and when delivered and accepted the written contract become necessarily the sole depository of all terms of the agreements up to that time, excluding all prior negotiations or contemporaneous oral agreements; and all testimony relating to the oral agreement, which varied or changed in any way the terms of the written contract of assignment or indorsement, was and should have been excluded by the court. Red Snapper Sauce Co. v. Bolling, 95 Miss. 752, 50 So. 401. A person placing his signature upon an instrument otherwise than as maker, drawer, or acceptor, is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity. Section 2719, Code 1930. This cause should be reversed and rendered for the amount of the note together with interest thereon at the rate of eight per cent per annum from the 27th day of July, 1930, together with the uncontradicted amount of reasonable attorney fees. W.L. Sims, of Columbus, for appellees. This endorsement is a qualified endorsement and both the appellant and appellee knew it was at the time of the trade and delivery of the note and mortgage, as the testimony shows beyond a doubt that the appellee told the appellant that he was trading the paper outright and without any further obligation on his part. The appellant from his own testimony admits that the deal was an outright sale of the paper.

Judges

Smith, C.J., delivered the opinion of the court.

See more information ...

Smart Summary

Please sign up to generate summary.

DIVELBISS v. JONES et al.

1. EVIDENCE.

Indorsement stating payee "sold all my right, title, and interest" in note held plain and unambiguous; hence parol evidence that indorsement was intended to be without recourse was inadmissible.

2. EVIDENCE.

Ordinarily, in court of law, legal effect of instrument cannot be varied by parol.

3. APPEAL AND ERROR.

In action on note, amount of attorney's fee held for jury, precluding Supreme Court from rendering final judgment, notwithstanding amount due on note was fixed.

Smith, C.J., delivered the opinion of the court.

The appellant sued Burns, the maker of, and Jones, an indorser on, a promissory note. The note was executed by Burns to Jones, and transferred by Jones to the appellant by the indorsement on the back thereof, reading as follows: "This is to certify that I have this day sold all my right, title and interest, to the within note and mortgage to L.B. Divelbiss, as part payment on radio." The appellees' contention is that this indorsement was intended to be "without recourse," and therefore he is not liable thereon.

This is the second appearance of the case in this court. On the former appeal, Divelbiss v. Burns, 161 Miss. 724, 138 So. 346, the indorsement was held to be a general, and not a qualified, indorsement. When the case was again tried after its return to the court below, the appellee Jones was permitted by the court to introduce parol evidence to the effect that the indorsement was intended by him to be, and accepted by the appellant as, one "without recourse" on Jones. The jury by instructions were permitted to and did so find, and there was a judgment accordingly. The language of the indorsement is plain and unambiguous, and therefore evidence in explanation thereof is inadmissible.

But it is said, in effect, by counsel for the appellee that the effort here is not to vary the language of the indorsement, but to add thereto an additional stipulation not embraced therein. On the former appeal, the indorsement was held to be a general indorsement with all the legal implications that flow therefrom, and ordinarily in a court of law the legal effect of a written instrument cannot be varied by parol. Campe v. Renandine, 64 Miss. 441, 1 So. 498. While there is a conflict in the authorities as to whether such an indorsement can be shown by parol to have been intended to be a qualified or restricted one, this court has aligned itself with those courts that hold that this cannot be done. Baskerville v. Harris, 41 Miss. 535; Hawkins v. Shields, 100 Miss. 739, 57 So. 4, 4 A.L.R. 760. See, also, Heaverin v. Donnell, 7 Smedes M. 244, 45 Am. Dec. 302; Traders' Sec. Co. v. Sullivan, 147 Miss. 72, 112 So. 869.

The parol evidence should not have been admitted, and after its admission had no effect on the character of the indorsement.

The appellant requested the court to return a verdict for him for the amount sued for, and asks for such a judgment here. The amount due on the note is fixed, but the amount of the attorney's fee is for the determination of the jury. Humphreys County v. Cashin, 128 Miss. 236, 90 So. 888. Consequently, final judgment cannot be rendered here.

Reversed and remanded.

DIVELBISS v. JONES et al.

Comments