Federal Discount Co. v. Fletcher

61 So. 308, 104 Miss. 251

Opinion

Cook, J.,

delivered the opinion of the court.

Appellant sued appellees upon a promissory note, and we gather from the record, supplemented by the briefs of counsel, that the defense was an agreement, made before the execution of the note, to the effect that defendants were to be held liable only in the event that they had sold a sufficient amount of the goods, which were the consideration for the original indebtedness. It seems that defendants had purchased jewelry from jewelry merchants, executing their promissory notes for the purchase price, and that these notes had been assigned to appellant; that the notes were placed in the hands of attorneys for collection; that the attorneys agreed with appellees to extend the time for the payment of the notes upon appellees executing their note, payable to appellant, which was-done, and it is upon this note that this suit was based.

Appellees, at the trial, testified that it was the understanding between them and appellant’s attorneys that they would not be called upon to pay this note until they had succeeded in disposing of the goods for enough to liquidate the same. Nothing of this kind was written into the note — the note being an ordinary promissory note, by which the makers promised to pay a sum named, on a day named, to appellant. One of the appellees testified that it was his recollection that the note sued on was signed by him in the office of the attorneys representing appellant. The attorneys testified that no understanding or agreement was made, except as shown by the note itself ; that the whole transaction was by letter. Two letters of appellees appear in the record and these letters set out the agreement, or appellees’ interpretation thereof, and nowhere in these letters is there any hint of the agreement now set up to defeat the- collection of the note. On the contrary, in the letter dated March 29th, appellees, after stating that they would pay forty dollars cash, and •execute their note for the balance, say: i£I would pay every dollar of it without a word, if I had it. Now, gentlemen, I hope this will suit you. If it does, just fix up a note to that effect, and I will sign it with security papers transferred to you at once. ’ ’ This letter was written by the testifying member of the'firm, as well as the other letter dated April 16th, inclosing the note sued on.

It is unnecessary to question the veracity of the witness. It may be unreservedly admitted that he related the facts as he then remembered them; bnt we are forced to the conclusion that his memory was at fault. He may have so understood the transaction, but it is manifest that he did not take the attorneys representing appellant into his confidence. Besides, he committed his* understanding to writing, and said nothing indicating any agreement such as he related on the witness stand. The verdict was in the face of the undisputed evidence, if we set aside witness’ recollection of past events, which recollection is directly contradictory of his contemporaneous writing.

Reversed, and judgment here.