Foote v. Dickson , 121 Miss. 186 ( 1919 )

Holden, J.,

delivered the opinion of the court.

The appellant, F. W. Foote, filed his bill of complaint against the appellee, J. M. Ware, and one Benjamin H. Dickson. The appellee, J. M. Ware, demurred to the bill on the ground that no equity appeared on the face of the bill and that there was an adequate and complete remedy at laiv. From a decree sustaining the demurrer and dismissing the bill as to appellee, Ware, this appeal is taken by the appellant, Foote.

It appears from the bill that defendant Dickson, who was president of the Cadenhead Drug Company, a defunct concern now out of business, obtained a loan of one hundred and twenty-seven dollars for said concern from the appellant, by tendering and delivering to the appellant what purported to be, and was represented by Mr. Dickson to be, the note of said company, jointly signed by the appellee, Ware. The bill shows that, when the note fell due and was presented to the appellee for payment, the appellee declined to pay same on the ground that it was not his note, stating to the appellant that the note which he executed was the joint note of himself and defendant Dickson, as surety for defendant Dickson individually, and not for said company, and that while the note presented bore his signature, yet after its execution by appellee, and without his authority, the name of said company had been written above the name of said Dickson thereon and the abbreviation “Pres.” written after the name of said Dickson thereon, making it to appear to be the note of said .company by said Dickson as president, with appellee as surety in the capacity of joint maker with said company.

The bill also charges that appellant loaned the money to said company on the credit of appellee, Ware, based upon the representations of defendant Dickson that the appellee’s signature to said note guaranteeing, the payment by said company was in every way regular and valid. The- bill further charges, in substance, that the complainant in making the loan to the company relied upon the representations of defendant Dickson as aforesaid, and that Ware is liable to appellant on the note; but, if Ware is not liable on the note, then Dickson is liable for the amount thereof for his fraudulent representations. The appellant does not undertake to charge that the contrary statements of Ware or Dickson are true or false. The bill charges no fraud or collusion between Ware and Dickson nor does it allege with certainty that Dickson was guilty of fraud.

It seems clear to us that the appellant had an adequate and complete remedy at law, for the reason that, if the claim made by the appellee, Ware, was shown to be untrue, then the appellant could only recover judgment against Ware on the note. We think that appellant had his adequate and complete remedy in a court of law upon the note as signed and delivered to him by Dickson. If Wiare, in law, could defeat recovery on a question of fact as to the alleged change or alteration of the note after he signed it, this alone would not afford the appellant a remedy in equity against the appellee, Ware. There is no question of multiplicity of suits or circuity of action involved, as it may be that there is but one suit maintainable, against one or the other, or separate and different actions against each. A judgment against either might end the controversy. If the claim of one is true, the other must ’ be false, and to determine this issue a court of law is the proper forum.

The decree of the lower court is affirmed.

Affirmed.