Harper v. Calhoun , 8 Miss. 203 ( 1843 )

Per Curiam.

The plaintiff, as indorsee, instituted this suit on a promissory note for three thousand dollars, made payable to the Mississippi and Alabama Railroad Company. The defendants obtained a verdict in their favor, and the plaintiff moved for a new trial, which being refused, he took his exception.

The principal question in the case arises out of the sufficiency of an offset claimed by defendant Calhoun. It seems that Calhoun claimed to be the owner of one hundred and forty shares of the capital stock of the bank, on which thirty per cent, had been paid, amounting to four thousand two hundred dollars. He filed an account or bill of particulars, in which the bank is charged with this amount, and also with a certain amount of notes, the issues of the bank.

The mere ownership of the stock did not of itself entitle the party to avail himself of it as an offset against a note given to the bank. But the defendants relied on, and attempted to establish a special agreement on the part of the bank to take the stock in payment of the note. If such agreement had been made and consummated before the transfer of the note, it would have extinguished the debt due from Calhoun; but no agreement of the kind is satisfactorily shown. The proof as to the ownership of the stock is vague; and as to the agreement, it is wholly insufficient.

The evidence of the agreement to take the stock in payment of the debt, consisted of a letter addressed to the cashier by Calhoun, in which he says, “ascertain from the directory if I will not be permitted to relinquish stock to the amount of my liabilities to the institution as principal.” This did not even amount to a proposition ■ to relinquish; it was a mere request to ascertain whether such relinquishment would be acceptable. The only evidence of the willingness of the bank to take such relinquishment, was a written memorandum seen afterwards by the witness on the same letter, then in possession of Calhoun, signed by no one, but admitted to be in the hand writing of Crozier, a director, which is in the following words: “The cashier will say to H. Calhoun that the board agree to the above proposition.” This was not a binding acceptance of Calhoun’s proposition, even if his inquiry should be taken as a proposition. Crozier was but a single director, not capable of binding the board without express authority. It required the action of the board to make such a contract as that attempted to be established. But suppose the whole board had agreed, Calhoun’s letter was not such an open proposition as to make its acceptance binding on him. If the board had agreed to receive his stock, still he was at liberty to relinquish or not. As further evidence of the agreement of the bank, witnesses were introduced, who proved that it was customary for the bank to take assignments of stock in payment of debts. The existence of this custom did not amount to a contract. If Calhoun had transferred the stock in payment of the note, it was a fact susceptible of proof. The custom of a bank may be proven for the purpose of interpreting a contract, but it is no evidence to establish one when an express contract would be necessary, as it would in this case. The plaintiff objected to all this evidence as it was introduced; hence no objection is to be considered as waived.

There is a charge in the bill of particulars for so much money in the notes of the bank, but the notes do not seem to have been in court; it is consequently unnecessary to notice it further.

The right of the plaintiff to the note was called in question. It was indorsed in these words: “Notice of demand and non payment waived 28th of September, 1839. Z. P. Warded, Cashier.” It would seem from this that there was an intention to transfer the property of the note. It is presumed that the bank intended to waive the necessity of demand and notice. These words can mean nothing else. If the note is still the property of the bank, this memorandum on the back is unaccountable. If it is the property of the plaintiff, the meaning is plain. Warded, as cashier, was the proper officer to transfer and indorse the bids receivable of the bank, and the defendants themselves proved that he was cashier. This indorsement must be regarded as sufficient to pass the interest in the note. The special indorsement is only explanatory of the nature of the contract between the indorser and indorsee, and does not qualify the indorser’s right. We think, in any aspect of the case, the plaintiff has clearly shown himself to be entitled to a new trial.

Judgment reversed and venire de novo awarded.