The comet. [volume] (Jackson, Miss.) 1877-1882, 1880-02-21

Elror 10 tne circuit Court of Clay county,
Hon. j. NJ. Arnold, Judge.
Talbot Hibblc, merchant at West Point
MISS, MADE arrangements to procure ad-
Vances during the year to the amount of
$4,000, from Bush, Yates & Co., cotton fac
t tors, at Mobile, Ala, the money advanced
to be invested in cotton, which was to be
shipped to the Mobile firm for sale.
The contract was evidenced by written
note for the amount specified dated March
20, 1876. due December LIST, thereafter. pay
able TOD. Ii. Greer, or order, and BY him
endorsed to Bush, Yates Il Co. Greer was |
an accommodation endorser of the ,fote. |
Said note was further protected by a trust
deed executed by Hibble on real and per-
sohal property. Hibble is now discharged |
bankrupt, and this suit is against Greer.
the endorser, to recover an alleged balance
of 1919 due on the note. No amount had
been advanced to Hibble when the note
was given. One month after its execution
| one of the members of the firm of Bush.
Yates $50. died and new firm was formed
under the same name, with hew member.
All the assets of the old firm were transfer
red to, and all its liabilities assumed by
Che new one. Only small amount had
been advanced upon the note at the da tie
of the change in the firm, but the full
amount was subsequently advanced The /
payments made by lIibble were sufficient ]
to eXtinguish the advances made by the y
old firm, but insufficient to liquidate those r
made by the new one. The first question t
presented is whether Greer, the endOrser G
is liable for these latter advances, or =
whether his liability ceased with the dsso- d
luton of the old firm. The other questions a
are given in the opinion. .
Barry Il Beckett and l.. Brame, for plain c
tiff in error.
Houston & Reynolds and Beal Il Critz. 81
for defendant in error. "
CHALMERS, j., =
Held
l. The contract of Il surety is always II
STREET Juris, and where it takes the shape r.,
Of guaranty of future advances, the aI- Vi
Lhorities are uniform to the effect that in
,he absence of anything in the contract to II
Indicate that it is assignable, the gIarantor v
S not liable if the advances are made by gr
my other than him with whom he entered on
NV COIlIIuC Ilcllct, III Is nelQ Jnat where II
bond of indemnity for the future conduct ali
If another, or letter of credit for future + sal
dvances has been given, any change in the sal
lrm to whom it is given, will violate the wi
lain for misconduct thereafter committed, ior
+ advances thereafter made.
2. If the contract contains indications Nv
hat it was intended to be made assignable =
will justify all to whom it may properly
ONE, i'll trusting to and relying upon it,
3. In the present case the guaranty took II,
ne shape of prOmisSOry note payable to -"
rdeF. Is this II sufficient indication that T.,
ne guarantor (endOrscr) undertook to M
c responsible to any and all persons who Il.
light, upon the faith of that note when a
roperly transferred to them, make to IIib- S
Ie the advances desired by him? 1t was
ruled, and we think correctly, in the n
My case directly in point, that we have A;
cen able to find. ed
4. As we cannot assume that the parties al q
tended purposeless act, we must con- ont ont
ude that the object of putting the con- A n
act in such shape'was to authorize its as ].
with the same right in the as Cou
gnee as belonged to the original holder int
lmely: that of thereafter advancing upon sall
Up to the sum specified. We conclude, Of :
erefore, that the endOrser in this instance said
as liable as well for the advances made -ingl
, the new firm, as for those made by the the
iginal one. said
8: It was objected that in point of fact sect q
was HlduC lldDlt lOT NkealllgS IHI Ill fN- -
IS of the three thousand dollars specified wit,
the note, the amount recovered being a -
lance due npon dealings aggregating
Ore than So, 000-many of the debts
ing upon transactions which took place C..
Ter the maturity Of the note, and after it Oha
d been protested for nOn-payment. The
)ney received by Hibble, was advanced MIN
IN time to time In such sums as demand
and as received, was invested in cotton, T4O5
lich, as bought, was shipped to the oar
1bilc firm. Frequently cotton was
ught OH margin, and the full amount of ~
value drawn for as shipped, credit ~,
ing given by the factors for the amount t eoii
lich the. cotton brought when resold in .,Gu
2 Mobile market. That the aggregate Jli,i
m Of these dealings exceeded the amount S HUt'
pulated in the note. did not affect the Ci 81.
bility to recovery for the balance due S srT
the maturity of the note, provided such 81!
lance did not exceed $4,000. ~ :
!. The account as sued upon embraces u! y
llngs between Hibbe and plaintiff. after MAJ
maturity of the note, is in that regard MP
oneOus. 1t was not competent for the 49,
tors to continue Indefinitely their deal Iiis
or lishIn for anv dnd all" all ,dvnn, tne hin Jack
ght be made at any time before the note az
Jld become barred by the statute of ~
itations. ~ !
Among the cotton shipped by Hibble Ii ~ y
an dc entire ,,o,, 70 T. a., , : pi',,, the c
Ohs VII thtAit eAVp " bt EiuhH uDOll
plantation being embraced i'm the . vons
rtgage given to protect the note. This VA.
ton was mingled with that which was 'os ~
ght on margins and was drawn against 10 ~
excess of is value at the time Of its VII
Dment, 30 that practically, plaintiff
aimed no benefit from its reception, so d.,
asa liquidation of the amount repre- ID!
ted by the note was concerned. -
The delivery Of this mOrtgaged cotton
not operate pro tantO aS a payment
N the note. 1t is true that the delivery
property ordinarily operates The s.
ustanti a payment of the mortgage
{ TO the extent Of its value. but in this ~,
ance, the creditor, misled by the pTin-
] debtor, and ignorant that they were CHAIR
living mOTtgaged property, paid TO him
he time Of its reception its full value in n y
ey. Certainly then, Hibblc cannot y ,bs
N that the delivery Of the cotton OPP i NIX
ed as a payment on the note. and while Court
secretary might do so if there had been fore Of
Ision, or even knowledge upon the enter
% the creditors. he cannot i'm the Monaa
II.