
    Samuel H. Andrews v. Lena Kramer et al.
    Checks. Indorsement. Guaranty.
    
    One who negotiates a check guarantees the title thereto, and is liable to the person to whom he passes the same for a breach of the guaranty.
    From tbe circuit court of 01 arise county.
    HoN. Thaddeus A. Wood, Judge.
    Andrews, the appellant, was the plaintiff in the court below; the appellees were defendants there. The opinion of the court fully states the facts.
    
      D. W. Heidelberg, and Buckley & Halsell, for appellant.
    Bills of exchange are personal property. Under the statute they are as much the subject of larceny as chattels. A person who sells them knowing that he is not the owner, and is without authority to do so, as much warrants the title as he would any other article of personal property. Merrictm v. Walcott, 80 Am. Dec., 69, and note on pp. 71, 72; Hudspeth y. Wilson, 21 Am. Dec., 344; Frontier Bank v. Morse, 38 Am. Dec., 284; Lobdell y. Baker, 35 Am. Dec., 358; Laborde y. Consolidated Ass’n., 39 Am. Dec., 517; Keeler v. Fossett, 52 Am. Dec., 71; Lowremore v. Berry, 54 Am. Dec., 188; Ellis v. Ohio L. I. & T. Co., 64 Am. Dec., 610; Byan y. Copes, 73 Am. Dec., 106; Bobbins v. Packard, 76 Am. Dec., 134; Davis y. Funk, 80 Am. Dec., 519; Neivton y. Porter, 25 Am. Reports, 152; Colson v. Arnot, 15 Am. Reports, 496.
    
      W. T. Houston, for appellees.
    The action was for money paid out in satisfaction of a judgment for $173.28 and costs. The account sued on makes no reference to checks.
    
      Summons to answer this action on tbe judgment issued on the same day. Afterwards, on December 15, 1897, a so called declaration was -filed seeking to recover money paid out in satisfaction of said judgment; this was filed without leave, and so far as appears was not afterwards noticed; attached to this declaration were copies of checks on which said judgment was, as alleged, grounded, but. in several particulars variant from those offered in evidence.
    Appellees insist that as the action was on the judgment under a title derived from lí. H. Kramer, and as the judgment was properly excluded, and H. H. Kramer shown to have had no title, appellant could not, without amending his pleadings or account sued on, recover in this action.
    The so called declaration is unknown to our practice in a justice court, was filed out of time without” leave, and formed no part of the case; besides it did not change the character of the claim sued on.
    H. H. Kramer had no title. 2 Daniel on Negotiable Instruments, sec. 1663, aud sees. 1474 and 1582; 1 Kernan (11 N. Y.), 405; 73 N Yl, s.c. 7 Am. Rep., 315; 42 N. E. Rep., 702, 703; 117 Pa., 101, 102, 103; 94 U. S., 343; 10 Wall., 156; 35 N. J. L., 400.
    Again, appellant cannot recover on the implied warranty of the checks even if the action had been grounded on this cause of action, because they were honored by the drawee, and the drawer has acquiesced therein. Appellant suffered no damage. Nor is there any evidence of failure of title. Possession by appellees raised presumption of title in them, or rather in Mrs. Lena Kramer. Then, too, the checks were properly excluded, because of the variance. Those offered in evidence did not accurately correspond with the copies, or what purported to be copies, filed with the socalled declaration.
    The pleading and proof must correspond. There was in no event any liability on PI. B. Kramer, or any implied warranty of title to said checks, as he acted only as agent for his mother, Mrs. Lena Kramer, and this was known to appellant. 11 Am. St. Rep., 614 et seq.
    
    Argued orall\ by Frank Johnston, for appellant, and W. T. Houston, for appellees.
   TeeRai., J\.

delivered the opinion of the court.

S. IT. Andrews sued Lena Kramer and Herman B. Kramer in the sum of $173.28 for money had and received by the defendants to and for the use of the plaintiff. It appeared from the evidence that one of the defendants, at the instance of the other, indorsed and sold to Andrews two checks aggregating $173.28, drawn at Boston, Mass., by IT. W. Wadleigh on the North National Bank, and payable to the order of H. IT. Kramer; these two checks were cashed by Andrews for the defendant, IT. B. Kramer, who presented them for that purpose at the instance of the other defendant, Mrs. Lena Kramer, and when Andrews cashed said checks, said IT. B. Kramer indorsed the name of H. IT. Kramer thereon and delivered them to Andrews. Afterwards IT. H. Kramer claimed these checks to have been his property, and sued Andrews for appropriating them to his use, and obtained a judgment of recovery therefor. Thereupon Andrews paid II. II. Kramer the value of the checks, and brought the present suit to recover of the defendants the money he had paid them for said checks.

On the trial of the case in the circuit court the evidence of II. H. Kramer and others disclosed the facts that the two checks were drawn by IT. W. Wadleigh, a Boston customer of IT. H. Kramer, who operated a tannery near Enterprise, Mississippi, in payment of two shipments of leather made to Wadleigh by II. II. Kramer; that these two checks came to the hands of the defendants, H. B. and Lena Kramer, and that Andrews, for accommodation, cashed the checks for IT. B. Kramer at the instance of Mrs. Lena Kramer, and that IT. B. Kramer indorsed the payee’s name on said cheeks and delivered them so indorsed to Andrews, and that the money paid by Andrews to IT. B. Kramer came to the hands of .Mrs. Lena Kramer, who appropriated the same to her own use. Besides the evidence, the substance of which is above recited, the plaintiff offered a book, not identified, purporting to be the docket of H. K. Ward, a justice of the peace, containing a judgment for the sum of said checks and the proceedings leading thereto in favor of LI. H. Kramer, and against S. H. Andrews. The evidence was heard by the court, but all of it was excluded from the jury, and they were instructed to find for the defendants.

The indorsement of the checks by II. B. Kramer, at the instance of Lena Kramer, was an undertaking by them to Andrews that they were authorized to indorse said checks; they thereby guaranteed or warranted to Andrews a title to the checks, and Andrews, in seeking to recover the money paid them on said checks, is merely calling on them to make good their guaranty.

The judgment proceedings before Justice Ward, between II. H. Kramer and S. JET. Andrews, are as to the present defendants res inter alios acta, and apart from any evidence that the book was the official record of Justice Ward, were inadmissible in evidence, but the plaintiff had offered abundant evidence to go to the jury, and the exclusion of his evidence by the court •was error.

Reversed and remanded.  