McLeod v. Magee ( 1909 )

Whitfield, O. J.,

delivered the opinion of the court.

We have examined this case carefully, and simply note the results arrived at. On the direct appeal of the McLeods, the decree is affirmed, except as stated hereinafter. On the cross-appeal of Womack the decree is affirmed. Indeed, his counsel ask here for an affirmance against their own cross-appeal, recognizing that there is no merit in the cross-appeal. ,On the cross-appeal of Magee the decree is reversed as to the award of $107 against Magee in favor of the McLeods. This matter is not presented as an issue by the pleadings in this case at all, nor is there any satisfactory proof that the McLeods have actually paid the amount to the Mendenhall Company.' There is a mistake in the final decree of $2 in the amount awarded by the chancellor to Womack against the McLeods. The amount should be $260.88, instead of $262.88.

The only serious contention of the appellants,’the McLeods, is that the note was transferred by them to Womack without recourse; but the record distinctly shows that it was agreed by counsel for both complainant and defendant that, if there was a less sum due than was paid by Womack, the difference should be returned to Womack. Indeed, the whole record shows that the McLeods insisted upon just the true amount of the note at the time of transfer being regarded.

The decree is therefore affirmed on the cross-appeal of Womack, and the decree on the direct appeal of the McLeods, with the modification just stated, of the $2, is also affirmed in all respects, and the decree on the cross-appeal of Magee is affirmed in all respects, save as to the item above mentioned of $107. As to that item this decree is reversed, and a judgment will be entered here in favor of Magee, relieving him of that item, and awarding him the costs of his cross-appeal as against the McLeods. A careful scrutiny of the conduct of Magee, as disclosed by the record, causes us to think the action of the chancellor correct in awarding the damages and one-half of the costs against him.

'Reversed.