Wally v. L. N. Dantzler Lumber Co.

SteveNS, J., delivered the opinion of the court. This is the second appeal of this case. The opinion of this court as reported in 114 Miss. 601, 75 So. 433, — 712 — has a full statement of the pleadings as then presented. We sustained a demurrer to the original bill, but remanded the cause with leave to complainant to file an amende ^ bill. After the cause was remanded to the chancery court, an amendment to the bill was filed, and complainant by this amendment seeks to recover upon certain checks and drafts, some of which are made exhibits, while others are alleged to have been lost. After the amendment, appellants renewed their demurrer to the bill as amended, the chancellor, overruled the de'murrer, and from his decree this appeal is prosecuted. The original bill, among other things, averred that the complainant was doing a regular sawmill business, was buying sawlogs and manufacturing the same into lumber, and arranged with the defendants to cut logs from their own lands and the lands of others and float them down the rivers to Moss Point for the account' of complainant; and that in these mutual dealings large advancements were made by checks issued by complainant in favor of the defendants; and that certain drafts, were drawn by defendants on complainant, which drafts were duly accepted and paid. An itemized statement of the account was made an exhibit to the original bill showing the various advancements and the alleged credits from the proceeds of the logs delivered by the defendants to the complainant’s manufacturing plant at Moss Point. The original bill prayed for the balance due on this itemized account. The extent and character of the amendment to the original bill may be stated in language of counsel for appellee, as follows: “The gist of the amendment was that the indebtedness alleged to be due appellee arose from a number of advancements made appellants by written drafts and checks. Copies of these written instruments were attached to the amended bill and made parts thereof. . . . Kecovery is now sought upon the drafts and checks themselves, which are exhibited to and made parts of the bill.” — 713 — The demurrer, which was renewed to the hill as amended, submits that the items attempted to be sued for are barred by the three-year statute of limitation, while appellee insists that the six-year statute of limitation applies. Appellants also insist that the law of the case as announced on the former appeal is controlling and that no new issue was presented by the amendment. We held on the former appeal that the account sued on was barred by the three-year statute. We are now confronted with the question, as to whether the complainant may declare upon paid and canceled checks and drafts, and thereby change the suit from one upon an open account to an action upon these checks and drafts so as to escape the three-year statute of limitation. In disposing of the present appeal it is unnecessary, we think, to discuss to what extent the rule of the law of the case applies and controls this second appeal. We proceed to a consideration of appellee’s contention that “the written instruments evidence the debt and the law implies the promise to pay,” and consequently that section 3097, Code of 1906, applies. This in a way presents two questions: First, may a complainant or plaintiff in an action sue upon a paid and canceled cheek or draft in a way to characterize the suit upon a written instrument; and, secondly, has the complainant done so in this case? In Lehman v. Powe, 95 Miss. 446, 49 So. 622, one claiming to be the creditor of the estate of T. J. George, deceased, attempted to probate certain checks which had been issued, paid, and cancelled. “The probate consisted in presenting to the clerk two canceled checks, with the affidavit required” by our statute. Our court, by Smith, J., observed: “These canceled cheeks disclose no liability at all on the part of the estate to any one. In fact, they showed no liability from any person to another, and could not have been used as a foundation for a suit in — 714 — any court. They could have been used, it is true, as evidence in a suit for money loaned, if in fact they related to such a transaction, but only as one link in the evidence necessary to maintain such' a suit. Their mere introduction in evidence in such a suit, unaided by other evidence, would not have proven anything.” If this be good law and controlling as an authority, a declaration based upon the canceled cheek alone, unaided by other material averments, would be an .insufficient declaration in law. The, position is sound, we think, that, in any action between the drawer and payee of a canceled check, such paid or canceled check on its face contains no promise to pay and carries no presumption of liability whatever. This is not a suit upon an unpaid check or upon a draft which has been accepted but is unpaid. Here the bank has honored and paid each of the checks and drafts sued upon. If the cheeks remain unpaid after having been duly presented for payment at the proper bank, they would then import a “debt from the drawer to the payee.” 2 Daniel on Negotiable Instruments, par. 1646. The presumption ordinarily would be more against than in favor of the drawer. As stated by the Supreme Court of Idaho, in Camas Prairie State Bank v. Newman, 15 Idaho, 719, 99 Pac. 833, 21 L. R. A. (N. S.) 703, 128 Am. St. Rep. 81: “Usually a check is given for money borrowed or a debt contracted, and in commercial transactions, as well as in law, it is equivalent to the drawer’s promise to pay, and an action may be brought thereon as upon a promissory note. 1 Morse on Banks & Banking, section 388.” The check, whether unpaid or paid, carries no presumption of an obligation on the, part of the payee to refund the amount of money thus transferred. It is elementary that to recover the money thus paid the declaration or bill must set forth the character - of the transaction, or, in other words, state the real contract between the parties. The check may evidence borrowed — 715 — money or may discharge an honest obligation which the drawer then owes the payee. The canceled check on its face is not a written promise of the payee, and the law would not imply a promise from the mere introduction of the paid check. The amended bill itself answers the second inquiry presented. The pleader in this ease did not stop with the mere statement and presentation of paid checks and drafts, bnt the bill expressly charges that these drafts and checks were issued as advancements upon sawlogs to be cut, rafted and delivered by the defendants to the complainant at its manufacturing plant at Moss Point. There was a running account-extending over a long period of time. The bill alleges that the defendants failed to deliver a sufficient number of logs to pay back the moneys advanced by means of these checks and drafts, and the suit after all is a suit to recover money advanced on timber to be cut and delivered. The bill is sufficient to state a cause of action, but its sufficiency does not rest alone upon the presentation of the canceled checks. The real purpose of these checks must be shown by material averments of the bill and upon trial would have to be sustained by competent testimony, in addition to the canceled documents themselves. But it is insisted by counsel for appellee that this is not alone a suit upon written instruments, but one upon a promise which the law implies from the written checks and drafts, and in aid of this contention reliance is had upon Washington v. Sorai, 73 Miss. 665, 19 So. 485, 55 Am. St. Rep. 555; Masonic Benefit Ass’n v. Bank, 99 Miss. 610, 55 So. 408; Musgrove v. City of Jackson, 59 Miss. 390; Cock v. Abernathy, 77 Miss. 872, 28 So. 18; I. C. R. R. Co. v. Jackson Oil Co., 111 Miss. 320, 71 So. 568; and other decisions cited in the brief, in which the court applied the six-year statute of limitation. None of the cases cited and relied upon are in our judgment controlling. Washington v. Sorai, supra, was a suit for the purchase money of lands conveyed by deed, and the — 716 — deed expressly showed the contract between the parties and the amount of indebtedness sued for. It is true there was no express promise on the part of the vendee to pay the consideration, but Judge Coopee, speaking for the court, well stated that— “The promise to pay is implied by law, but it is a promise to perform a written, and not an unwritten, contract.” He also stated affirmatively that— “The action,is not upon a contract provable by parol, but is one provable by a writing.” Fowlkes v. Lea, 84 Miss. 509, 36 So. 1036, 68 L. R. A. '925, 2 Ann. Cas. 466, was another action of such kind for the unpaid purchase money, and, under the interpretation which the court gave of the deed in that case, our court ruled in line with the holding in Washington v. Sorai. In I. C. R. R. Co. v. Jackson Oil Co., supra, and Y. & M. V. R. R. Co. v. Willis, 111 Miss. 303, 71 So. 563, the actions were essentially based upon bills of lading. The position of appellee is plausible under the authority of Cock v. Abernathy, 77 Miss. 872, 28 So. 18, but a close analysis of the facts of that case discloses that there was a written power of attorney under which the attorney represented the claimant in the collection of a certain claim, and there was a written receipt given by the attorney for the proceeds of the collection. From these documents the court concluded that the claim was. not barred by the three-year statute because the liability was provable by writings. Properly understood, the case mentioned is not, we think, at war with the views which we entertain. The true test was stated by Judge Campbell in Foote v. Farmer, 71 Miss. 148, 14 So. 445, by the following language: “The statute mentioned bars actions on any unwritten contract in three years. To take a case out of this statute, there must be a writing evidencing an acknowledgment of indebtedness or promising to pay, in such terms as to render any supplementary evidence unnecessary.” — 717 — In Masonic Benefit Association v. First State Bank, supra, the action was by a depositor against a bank and was based upon the deposit slips, canceled cheeks, and bank passbook. The case is clear upon the rule that a promise may be implied from the writings, but the action in that case after all was based essentially upon the writings and especially upon the bank passbook evidencing the deposits. The court stated: “It is only necessary to resort to appellant’s bank passbook and certificates of deposit, in connection with the canceled check in question, all of which are in writing. From the bank book and certificates there was an implied promise by appellee to return to appellant all funds deposited with it, not legally transferred by the appellant by check or otherwise.” The true distinction was clearly drawn in that case. It cannot be said that from the canceled checks and drafts in the case at bar, unaided by other testimony, there is an implied promise to return the funds thus transferred. We cannot escape the conclusion that the present suit is one essentially to recover back moneys advanced by the complainant to the defendants; that the promise to repay these moneys is not evidenced by writing; that to maintain this suit successfully something must be averred and proven in addition to the canceled checks themselves; and that these canceled checks only serve “as one link in the evidence necessary to maintain such a suit.” It follows that the demurrer to the amended bill should have been sustained. The decree of the learned chancellor will be reversed, and the bill as amended dismissed. Reversed and dismissed.