The comet. [volume] (Jackson, Miss.) 1877-1882, 1879-04-19

their own debt and charges against the cot
i ton, received for collection and paid off
: draft given by Johns, in favor of j. a. T
Q Green, for $1270O, when there was 81. o.
= yet remaining, which they rendered to Ric
= & Co.
s 1t was contended for the plaintiff in errol
that section 2230 of the Code of 1871, viz
"When any person or persons, body polite
or corporate, shall by order in writing, sign
ed by such person, or by proper agent,
direct the payment of any sum of money,
in the hands Of any other person. the
sum therein specified shall be due bv
virtue, thereof, to the person in whose favor
the order is drawn, and may be put in suit
against the drawer thereof or against the
drawee if accepted, and the amount recov-
cred with interest and cost.
| The testimony of Rice was objected to,
because as claimed, it tended to establish
his claim against the estate of VIM. Nc
Cutchen, the deceased partner of James
McCutchen. The conversations, and con-
ditional acceptance sued on, were had with
with the latter member of the firm, Plain
tifts III error assign among other things for |
error, the refusal by the Court to give the |
eighth instruction, which is as follow 'The
Court instructs the jury that in order to en-
title the plaintiff to recover on this claim as
a collection left in their hands, they must
show that it was through default of Nc
Cutchen that it was not collected, and if the
jury believe from the evidence in this case
that Rice q Co, took away the claim out of
McCutchens hands before they could have
collected the same, they must find for the I
defendant" S
SIMRALL, G. j.,
Held
l. The section of the Code, 2230, does :
not require an acceptance to be in writ
n.y. In this State the subject is governed by
he general law. The better mode is by =
writing, if not SO accepted, however, the c
contract Is not within the statute of frauds T
The acceptance may be verbally implied =
rom the conduct or words of the draWee -
may be conditional and if assented to by !.
he payee or holder, he will be bound by II
he terms of it. Whether the order was SO Ii
ccepted IN this case, were issues of fact for o.
be jury, and the findings on the evidence G
'ould be conclusive on this court, unless d
be plaintiff in error has been prejudged by Iii
ne rulings of the court on admission of CT
or the charges to the jury, or
le refusal of charges asked by him.
2. A negotiation and contract with one as
lember of a commercial firm, is a contract OF
18th the partnership, and binds all. Yet W
the contract was actually negotiated with OF
partner who is the survivor and defend ne
1T to suit founded on it, the plaintiff ce
no deposed to what occurred, would speak lie
no fact of which the defendant was not ~,
'gnizant, and about which he could not -,
Ter explanation. The parties would occu- W
7 an exact plain of equality. The plains l{
would have no vantage ground over the Oh
evil which the statute in tel
nded to cure is not presented i'll such rel
Sc. If the recovery i'll the suit where the WI
aintif testifes would only collaterally vi
sect the estate of the deceased in some
or settlement between his per- y,
nal representatives and the defendant, tllt
en- it can not be said that the object of alb
Q suit or the effect of the judgment would ne
to reach and obtain satisfaction from the law
cedents estate. of
;. There was testimony showing that the mo
PENDANTS received the order for collection pee
ly, and upon which defendant based his no,
nth instruction. We think it contained M
} rule of law applicable to the state of r ,,''
case assumed in the request if the jury ~
ieYed that it had been satisfactorily W. ".
'ved, and should have been submitted to ''le
For this error, the judgment is reyers- +
and new trial awarded