Capital Loan & Investment Co. v. Benson , 146 Miss. 607 ( 1927 )

^* Corpus Juris-Cyc. References: Agency, 2CJ, p. 627, n. 11; Bills and Notes, 8CJ, p. 1060, n. 38; p. 1061, n. 57; Evidence, 22CJ, p. 373, n. 3; p. 382, n. 62. This is an appeal from a judgment denying the appellant a recovery on a promissory note executed by the appellee to B.F. Russell, or order, which the appellant purchased in good faith for value before maturity. The ground of the appellee's defense to the note is the breach by Russell of a collateral agreement relative to the consideration for the note, made at the time of its execution.

The appellee challenged the appellant's ownership of the note, and in support thereof introduced in evidence, over the appellant's objection, a statement of Russell, made after the maturity of the note, that he had not sold it and was the owner thereof. This statement by Russell was made under the following circumstances: The note was presented by the appellant, through the bank to which it had been forwarded for collection, to the appellee, who declined to pay it. Thereafter the appellant requested Russell to collect the note, and he agreed to do so. The note was delivered to Russell, who called on the appellee, exhibited the note to him, and requested him to pay it. The appellee, according to his evidence, then asked Russell if he still owned the note, and he replied that he did. On this evidence, the court submitted to the jury the ownership of the note.

This evidence should not have been admitted, and, when admitted, proved nothing as against the appellant. Russell was a special agent authorized only to collect the note, with no authority, real or apparent, to make any admissions with reference to the ownership thereof, and the admissions of an agent are admissible against his principal only when within the real or apparent scope of his agency. We are not here confronted with any question of estoppel arising out of admissions with reference to a promissory note made by a person in possession, and apparently the owner of the note, on the faith of which a person entitled so to do has acted to his injury.

The note provides for the payment of a reasonable attorney's fee for its collection, and an attorney at law from a county other than that in which the case was tried was introduced by the appellee, and stated that a reasonable attorney's fee, based on the custom of the bar in his county, for the collection of such a note by suit, would be one hundred twenty-five dollars, but that he did not know what the customary fee therefor was among the members of the bar of the county in which the suit was brought.

The court below refused an instruction for the appellant, charging the jury to find for the appellant for the amount of the note and interest, "and also attorney's fee at such sum as you think, from the evidence, the plaintiff is entitled." This instruction should have been granted.

The appellee requests a judgment final here for the amount of the note and interest, together with one hundred twenty-five dollars attorney's fee. We cannot render such a judgment, for the reason that the amount of the attorney's fee must be determined by a jury; the opinion of the attorney who testified thereto not being binding on the jury, but being only one of the things it should take into consideration in determining the amount of the fee. Humphreys County v. Cashin, 128 Miss. 226, 90 So. 888.

Reversed and remanded.