The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1881-03-31
r. H. Thompson, for appellant.
B. Taylor, contra.
Net to be reported.
JOHN CHAFFE, Bro. & Son

SARAH A. TALIAFERRo.
Appeal from the Chancery Court of Co
piah County, Hon. E. g. Peyton, Chacellor
On the 28th of January 1873, at Halle
hurst, Miss, Mrs. Taliaferro, jointly with
G. A. Taliaferro, her son, executed to Chafe
Bro. & Son, of New Orleans, a note for S.
400, and gave a trust deed on her plantation
advances from the New Orleans house to q
firm in HazIehurst, of which the son was
a member. The note was signed in blank
Mrs Taliaferro executing to her son-in-law,
Roberts, power of attorney to fill up the
blank with such sum as he and Chaffe might
agree upon in New Orleans. The power of at
torney toRoberts, recited that the note and
trust deed were given, "to secure the said
John ChafIe Bro. q Son in advances they
may make to my son Charles A. Taliaferro."
And the trust deed recited that said firm had
| Undertaken and promised to supply the
said parties of the first part, goods, wares
and merchandise during the year 1873 to
the amount of the present value of said
note" The firm of which G.. A. Taliaferro
was a member was already largely indebted
to the New Orleans merchants, but this was
unknown to Mrs. Taliaferro. Her son also
owed them an individual debt of 81 AL, se~
cured by trust deed on his homestead and as
a condition precedent to executing her note,
she req uired that this debt should be trans
ferred to her. This was agreed to by all par
ties, and the blank in the note was filled with
an amount ($5400) sufficient to cover the de-
sired advances, and the individual note of
S144l was to be transferred to Mrs. Taliafer-
ro but the same remained in hands of
Chafe, Bro. & Son. Subsequently these
parties at the request of G. A. Taliaferro,
cancelled the trust deed on his homestead,
and he sold the same to an innocent pur-
chaser. He being insolVent, this debt was
lost to Mrs. Taliaferro. Her anxiety to
obtain the note of $l441, she says, grew out
of the fact that she already held an unsecured
note of $500 against her son, and it was to
her interest to control the secured debt.
She claims that the transfer to her of
the note of $1441 was made a condi.
ton precedent to the execution of her
own, note, and that, inasmuch as this
condition was not complied with, no
liability ever attached upon her said note of
$540O. She never called for an actual
transfer of her sons note, and she gave
Chaffe Bro. & Son no notice of dissatisfac-
ton for months after knowing of their can
collation. of the trust deed, nor until called
upon to pay her own note.
The larger portion of the proceeds arising
| frsm the discount of the note of s., 400 was
/ by Chaffe Bro. & Son, without the knowl
edge of Mrs. Taliaferro, applied to the sat-
isfaction of former indebtedness due them
from Roberts and Taliaferro. But this point,
the Supreme Court decides, was not raised
by the pleadings.
Chaffe Bro. & Son claiming a large balA
ance as due on the said note of $5, 400, had
the trustee to advertise the plantation of
Mrs Taliaferro for sale under the trust
deed. Thereupon she filed this bill Deem
Der a, 1874, to enjoin the sale and cancel
the trust doed. Defendants answered and
proof was taken. On final hearing the court
below granted the prayer of the bill and
made the injunction perpetual. The
Chancellor held that Mrs. Taliaferro, the
surety, only undertook to become liable for
future advances to be made to her son, and
that she was not bound by the action of the
parties, without her knowledge, in applying
the proceeds of her note when discounted
to the satisfaction of former Indebtedness OF
c. A. Taliaferro and Roberts; that she
executed the note and trust deed upon
condition that future advances would be
made to her son, and his note of 81, AL.
transferred to her, and that, as these con-
ditions were not performed, she could not
be held liable. But that, if the principle
that she would only be released pro tGnto
applies, she would be discharged from
liability, for the new advances actually
made did not equal the amount of the note
of 81, AL.
Defendants appealed.
CHALMERS, G. J.
Held
/. By the arrangement between the par
ties the note of c. A. TaliafeIro for $1,441,
secured by trust deed, became the property
| of Mrs TallAferro- The fact Lnat tnere was
no manual delivery of the note did not con-
stitute a violation of the contract Roberts,
her agent, was authorized to make. Her
right to receive the note was never asserted
/ bv her nor denied by Chafe 81 Co. 1t re-
NAMED as her property in their hands, and
its subsequent destruction was not an alter
alton of the original contract, but simply an
imnairment of securities belonging to her.
The remedy il to be found, not in releasing
her from all liability upon her contract, but
/ nv compelling Chafe & Co. to make good
EY6e loss sustained by their misconduct In
satisfying the trust deed.
. Mrs. Taliaferro became the surety OF
ouarantor for such advances rs might there
afeer be made to the firm of which her son
was a member, as is shown by the trust deed
and the power of attorney authorizing
Roberts to fill the blankin IL
It was a mis>application of the proceeds o.
the note to use the same in paying formei
indebtedness of Q. A. Taliaferro anc
Roberts. This was not binding on MRS
Taliaferro as the Chancellor held But the
noint 10 not made by the pleadIngs- L
the facts as to this were unknown 70 com
,,Io;nant at the outset, the bill should have
!, 6esr amended after the testimony came IN
- "a - have given defendants an opportu'
,,;t~- Nv cross bill to seek reformation o
the writinqsaif they failed to express TN
trne intention Of the parties.
Decree reversed cause reaandea sOsfA teau
to both parties to amend
w. p. Harris. for appellants.
: J. A. Brown, contra.
RIO be reported.1
I,ave Cooper having been OF eounse. =
= ..,-e1Sss before his appointment TOOK ny PA1
5 II he Ieciqion OF the above case