The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1875-03-18
Decision OF the Supreme Court OF
Mississippi In Ihe Case Of
ISABELLA ADAMS
rs. 1861.
J. L. POWER

. court, ana VIII be f0unQ reported IN r.
Mississippi, p. 451. On the case as made
in that record, il was held that the test,
mOny tended TO show Eovation, by
which the note of Power Il Jones, was
made payable TO Carter & Cook, in ex-
tinguishment of Sbannon's indebtedness
to them. The consideration which sup.
ported the promise to pay Carter &
Cook, being the satisfaction of Shan
mons debt to them.
In that view of the transaction. il would
follow that nothing connected with the
sale of Shannon's interests in The CLA-
RON newspaper establishment, including
the contempOraneous deteasance agree
ment with Shannon, could be set up in
opposition TO II recovery by Mrs. Albums,
the endorsee of Carter IL Cook.
The kind of novation which the testi-
mony strongly conduced 10 prove, was
what in the civil law Is called "deiega-
ton" a new creditor is substituted, to-
wit; Carter * Cook But, a stated in
the opinion, two things must concur:
first, the new creditor must be substituted
| with the ebtors consent; secondly.
once existing debt to the new creditor
must be extinguished which extingush-
ment serves rs the consideration for the
new liability.
1t was because, as the testimony was
/ construed, Shannon's debt to Carter IL
/ Cook was discharged by the note of
Power u Jones payable directly to them,
/ instead of to Shannon, that the defences
/ set up by Power, were held not to be adj
/ Missile.
/ On the second trial the facts were
more fully developed, and quite a differ
ent complexion was given to the case from
what it presented on the first trial.
/ Instead of there being testimony in the
record now before us conducting to prove
q novatiOn in the form of delegation"
between Shannon, Power & Jones, and
Carter & Cook, the proof is clear, that
| Shannon Was not indebted to Carter q
Cook, and there could, of course, be no
such thing as cancellation of that in
debtedness by the substitution of Power
& Jones note to them for that pur-
pose.
At the time the note and accompanying
agreement was made, Shannon stated as the
reason why he wanted it in the names of
Carter q Cook as payees, was, they were
sureties for him, and he desired it as in
demnity for them, representing that he
was acting as their agent.
Shannon, in his deposition, states in
substance, that very shortly after the noe
and defeasance agreement were made, he
enclosed the note, copy of the agreement,
and deed to parcel of land in Jasper
county to Carter, with instructions to use
the note and deed in settlement of his
Indebtedness to Mrs. Adsms, for which
Q 4 @ \ L. -
Carter, in his testimony, denies that
| he received the defeasance agreement
and the deed, with the note. He admits
/ however, that Shannon instructed him in
the letter to give the note TO Mrs. Adams,
| in payment Of the Indebtedness to her.
/ A few days after receipt Of this letter,
| With its enclosure, Carter says that he
met Shannon and informed him that Mrs.
Adams was willing to take the note and
the deed to the land for her debt. To this
Shannon assented, and then advised him
of the privilege to pay the note in sub
scriptiOns and advertisement Carter Il
Cook both state that they parted with
no consideration for the note.
The testimony establishes these PROPOSE
tons: 1st That Carter and Cook gave no
consideration for the note. %. The note
was delivered to them, or to Carter, as
indemnity, to be passedto Mrs Adams on
account of the debt she held against these
parties Sd. The note rests for its con-
sideraton on the bargain and sale of
Shannon's interest in the CLARION news
paper establishment to Power q Jones.
4th. Carter & Cook were "ndcated" as
payees to indemnify them, and for the
purpose of using the paper to take up
ShAnnon's debt, for which they we're sure
ties 9TH Carter and Cook have no better
right against the makers, than Shannon
could have had if he we're the payee.
The jury would have been well war
ranted in finding that at the same time
Carter received the note from Shannon,
he also received a copy Of the deteasance
that impaired knowledge of the origin and
consideration, and that Shannon had as
sumed to act as agent that disclosed to
ShaLnon's sureties, that he had taken the
responsibility of an agency for them both
as respects the note and defeasance agree
ment in order to provide In part the means
of relieving his suretles and himself from
a debt. Although there was no prior au-
thorization, the acceptance Of the note,
on the terms and conditions stated by
Shannon was ratification Of Shannon's
act.
The general rule of the common law,
is that an agent cannot bind his princi-
pal by a sealed instrument unless he has
been appointed by writing under seal.
But the rule seems in this country to
have been so far relaxed as to allow a sub
seauent ratification, by acts of a contract
under seal if the law does not require
such instruments to be sealed. Worrel
vs.. Mann, n Y, 30; Lawrence vs..
/ TAYLOR, Hill, \. Y, 113; Randel VS..
VanV etcham, - John. 60; Evans VS.
Wills, %, " end. $40; Story Agency
SS154. 160-1-2 The defeasance contract
would have been as effectual, without seal
as with it. 1 he statute of fra uds does not
require such agreements to be IN writing
under seal. The acceptance of the note
and the appropriation of it with knowl-
edge of the circumstances, and agree
ment with which it was connected, was a
ratification of the assumed agency of
/ Shannon.
/ But whether the defeasance be consid-
cred as the contract of Carter 4 Cook,
as principals, by Shannon as agent, or
whether it be regarded as the personal
contract of Shannon, the result is the
same. The note and agreement grow
out of the same transaction and rest
upon the same consideration. Carter d
Cook, paying no value for the note, be-
came payees by the appointment of
Shannon, and for the reason of which
they were advised. They stand in no
more favorable light, nor with better
claim than would Shannon if he were
paYee.