Sims v. McIntyre

16 Miss. 324

• Court: Court of Appeals of Mississippi
• Decided: January 15, 1847
• Status: Published

Opinion

Mr. Justice Thacheb.

delivered the opinion of the court.

This was an action of assumpsit, for money had and received, in which the following was the bill of particulars filed. “Received of A. McIntyre, one note on Augustus Boyd, for $107 95. October 23, 1840. R. Sims.” The whole evidence in the case, included in a bill of exceptions to a motion for a new trial overruled, is as follows : Boyd testified that Sims presented him, for payment, the note described in the bill of particulars, without stating that it belonged to McIntyre, and that being in embarrassed circumstances, he took up that note with three small notes, and a note of James Torry’s for fifty dollars, having paid the three small notes. Torry testified that he paid eight or ten dollars upon his note, and that Sims had transferred it to William T. Courts. The foregoing was the evidence for McIntyre. On the part of Sims, Lansdale testified that in the spring of the year 1840, he had a claim of one hundred and twenty dollars against Sims, on account of a note transferred by him, made by Whitfield, upon which he had sued Sims, and that in a conversation which took place between McIntyre and Sims, in April, 1840, it was agreed by McIntyre, that being himself indebted to Whitfield, he was willing to give Lansdale any notes or accounts that he had, which Lansdale would accept in discharge of the debt due to him fromSims, for his liability for Whitfield. This Lansdale refused at the time, but subsequently he took from Sims three small notes, made by Boyd, in discharge of the debt due on Whitfield’s note, upon the additional guarantee of Sims.

It will be seen, from reflection upon the above state of facts, and the phraseology of the receipt filed in the bill of particulars, that McIntyre must have been indebted to Sims originally. Such is the inevitable conclusion from the language of the receipt, because, there being no evidence that Sims received the note mentioned in the receipt for collection, on behalf of McIntyre, he could only have received it as a payment of a debt due from McIntyre to him. This view is confirmed by the evidence on the part of Sims, when we find McIntyre oifering to pay Lansdale the debt which Sims owed him, on account of Whitfield, by a transfer of any notes or accounts, that would be acceptable to him. Such must be the result deduced from the evidence, unless we suppose that Sims received the note from McIntyre, for collection, which the evidence, as now presented, so far from permitting, in fact, excludes; Then it follows, that the jury found palpably against the preponderance of evidence, and a new trial should have been allowed.

Judgment reversed, and new trial granted.