Mendenhall Lumber Co. v. State Bank , 97 Miss. 648 ( 1910 )

Whiteiekd, O.

The agreement, Exhibit A to the bill, and the supplemental agreement, Exhibit D to the bill, were both executed on the 12th day of June, 1908, a£ parts of one and the same contract, and-are to be'treated as one and the same contract.

(1) On the face of these two instruments,, which are one, it is clearly shown that the $10,000 note was not to fall due, so far as the -principal was concerned, for three years from date, or two years after one yeár from its date. The suit was, therefore, manifestly premature, so far as the $10,000 was concerned. The notes, which are exhibits to the bill do not provide, as was provided in the case of Caldwell v. Kimbrough, 91 Miss. 877, 45 South. 7, that default in 'the payment of any of the interest should authorize the holder to declare the whole indebtedness due, and that case, therefore, is- wholly out of point here. The ‘testimony as to what occurred at the time of the attempted settlement shows conclusively that the appellants delivered to the appellee a check for the whole of the $1,500 note and the interest on it, and another check for $800, the annual interest due on the $10,000 note. Under the contract, this was all then due the appellee, and it should have accepted these checks and proceeded accordingly. The appellee was not entitled, therefore, manifestly, to either any attorney’s fees or any costs.

(2) The request made by the appellants that the appellee should indorse on the $10,000 note that its maturity had been' extended for two years, until June 12, 1911, was merely asking that that should be done which the contract already secured to them, and was a very reasonable request, in view of the fact that, had the $10,000 note gotten into the hands of innocent purchasers for value without notice, the note not showing such extension, the appellants could not have defended under our anticommercial statute. Code 1906, § 3503.

Per Curiam.

The above opinion is adopted as the opinion of the court, and, for the reasons therein indicated, the decree is reversed, and the cause remanded, with instructions to enter a personal decree below against the appellants in favor of the appellee for the $1,500 note and interest, and' the $800 of interest due on the $10,000 note, but taxing complainant below with, all the costs, and denying it any attorney’s fees.

Reversed.