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

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. Peery 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:

No 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.