
    Hermann, Briggs & Co. v. Hootsell & Al.
    Under the laws of Mississippi the maker of a note has the right to oppose against all subsequent indorsees, the same equities and defences which he may have against the original payee. — Seo 14 L. S03.
    "Where the bill of sale of certain slaves expresses it was for cash, and the purchaser gave a note for the balance of account due the vendor, including tho price of the slaves '. — held, that tho note and hill of sale are of equal dignity, and no other evidence being produced that the note was given through error, the legal presumption is, it is justly due, and that no cash was actually paid as stated in the hill of sale.
    Appeal from the parish court for the parish and city of New Orleans.
    
      This is an action on a promissory note, executed jointly and severally by Mrs. A. M. Glasscock and John Hootsell, at Natchez, on the 27th of March, 1838, payable eight months after date, to the order of Samuel Ootton, for $1944 89.
    The suit was commenced by attaching property of Hootsell in the hands of Franklin & Henderson in New Orleans.
    Hootsell admitted his signature, but averred the note was given in error; that he signed as surety of Mrs. Amanda M. Glasscock, who had executed it at the instance of Samuel Ootton, from whom she had purchased a negro woman and child for $1300; that Ootton gave a bill of sale expressing it to have been made for cash, and afterwards made out an account against her, including the $1300, said to have been paid in cash, and with other items and some credits allowed, left a balance of $1944 89,'for which the note was given.
    [420] Mrs. Glasscock now intervened and set up the error complained of, and prayed that the note be cancelled as having been executed in error.
    The facts on which the case mainly turned are fully set out in the opinion of the court.
    The parish judge was of opinion that the bill of sale was evidence of the price of the slaves having been paid in cash; and that this amount being included in the account for which the note was afterwards given was error, and could not be recovered. There was judgment for the balance of $644 89, with eight per cent, interest, after deducting $1300, the price of the slaves. The plaintiffs appealed. ■
    
      Grima & Fwrmr for the plaintiffs.
    
      May bin for the defendant.
    
      B. W. & A. N. Ogden for the intervenor.
   Simon, J.

delivered the opinion of the court.

Plaintiffs seek to recover $1944 89, which is the amount of a promissory note of hand subscribed in solido by the defendant- and by the intervenor, Mrs. A. M. Glasscock, to the order of Samuel Ootton, who indorsed it over to the plaintiffs.

The defence sets up that said note was given through error under the following circumstances: That on the 21st of December, 1886, Ootton sold to A. M. Glasscock, the intervenor, a negro woman, Patsey, and child, for the sum of $1300, which was paid in cash by her or by her agent; that having had other dealings previously and subsequently to the sale, a settlement took place between them at Natchez on the 27th of March, 183'8; that the account made by Ootton shows a balance of $1944 89, purporting to be due him by Mrs. Glasscock, which account she settled by giving Cotton the note sued on. That in said account, said Ootton through error or design again charged for the sum of $1300, being the price of said slaves, which error she did not dis-[421] cover and was entirely ignorant of. The defendant further avers that he signed the note as security, that he knew nothing of the error or design of Ootton, who afterwards passed away the said note; but that according to the laws of Mississippi, where the transaction took place and where the parties resided, the note, though in the hands of plaintiffs, is subject to all the equity and to all the objections which existed between the original parties.

A few days after the defendant’s answer was filed, A. M. Glasscock intervened to oppose plaintiffs’ claim on the same grounds alleged by the defendant. The parish court deducted the sum of $1300 from the amount of the note, and gave judgment in favor of the plaintiffs for $644 89 only; from which judgment said plaintiffs appealed.

There is no doubt that under the laws of Mississippi, the maker of a note has the right to oppose against all subsequent indorsees, the same equities and defences which he may have against the original payee. The first and principal inquiry therefore will he whether the defendant and the intervenor have adduced sufficient proof of the facts by them alleged against the plaintiffs’ right of recovery ?

In support of their defence, they have produced the bill of sale from Cotton to the intervenor, in which it is stated that “ for and in consideration of the sum of thirteen hundred dollars to him in hand paid, the receipt whereof is hereby acknowledged, he has this day bargained, &e.” The next evidence is the detailed account signed by Cotton, which was the foundation of the note sued on; said account is composed of several small sums, which, with the item of $1300, stated thus: “ 1 negro woman and child got last January 6, as cash, $1300,” make the aggregate amount of $2090 26, to which adding two small balances of account for the years 1836 and 1836, and upwards of $300 interest, and deducting therefrom a credit of $400 paid on the day of settlement (27th March, 1838,) make the very same amount for which the note sued on was given. • The defendant has also introduced the testimony of a witness to show Cotton’s handwriting to the two documents, and [422] particularly to prove that the slaves mentioned in the account are the same named in the hill of sale.

From an inspection of the account, which, as we have already noticed, is composed of small items, except the sum in dispute; and from the circumstance that four hundred dollars in cash were paid on account thereof by the intervenor on the day of settlement, it is difficult to believe that she would have given her note for the balance of said account, including therein $1300 which she had already paid, if she had not been satisfied that she owed it. Mo attempt has been made to introduce any evidence that the intervenor really made the payment of the thirteen hundred dollars mentioned in the bill of sale; and this was, in our opinion, necessary to destroy the presumption arising from the fact of her having given the note sued on, which must he considered at least as prima facie evidence of its being justly due, until the contrary is shown. The strength of the defence however is that the bill of sale itself shows the thirteen hundred dollars to have been once paid, that this cannot be contradicted by parol testimony, and that consequently the same sum must have been charged in the account through error or design. This, it seems to us, is a non seqvdtur; if on the one hand, the hill of sale shows that the $1300 were paid; on the other hand, the settlement of account and the note given for the balance due thereon, prove that said balance is due; the evidence is of equal dignity, and therefore we cannot take the acknowledgment made in the bill of sale, as conclusive proof of the error alleged, when we have a counter acknowledgment in writing that the sum claimed is justly due. It is of every day’s occurrence that, in the ordinary transactions of men, deeds of sale of real property and slaves are passed for cash, although the vendor does not receive a cent, and that the object of the parties to such sales being to give a title to the purchaser clear of mortgages, the vendor takes a note for the amount of the sale. In such cases, the note is considered as having the effect of a counter letter, which cannot be de[423] stroyed by the recital in the deed that the amount of the purchase-money was actually paid in cash; the note is due independent of the sale though growing out of the same transaction, and the only consequence against the vendor is that he has no longer the power of exercising his mortgage and legal privilege. In the absence of any other evidence, we may fairly presume that the note sued on was given under similar circumstances, and giving to it the force of a counter letter, we shall naturally suppose that the parties, by settling their general account, and the intervenor by giving her note, intended to provide against the consequences of the acknowledgment contained in the bill of sale, and to secure to her vendor the payment of the price of the slaves. Wo think that the defendant and intervenor have not satisfactorily ijroven their allegations and that the judge a quo erred in giving them credit for the sum in dispute.

This view of the case renders it unnecessary to examine the question arising from the bill of exceptions taken to the opinion of the lower court, rejecting the parol evidence offered by plaintiffs to show that, according to the common law and statutes of Mississippi, it was competent for them to inquire into the facts of non-payment of money acknowledged to have been received in a written instrument; and to prove that in tact no money had been paid by the intervenor to Ootton, as stated in the bill of sale. But the evidence itself accompanies the record, and we find in it the proof of an important fact which appears to us to be unexceptionable, to wit: “ that the bill of sale of the slaves from Ootton to A. M. Glasscock remained in the hands of Cotton till after the settlement of accounts above spoken of, and that it remained in the desk of said Ootton in his store till after said settlement, when it was delivered to the said A. M. Glasscock.” This part of the evidence objected and excepted to, does not, it seems to us, prove any thing contrary to or beyond what is contained in the written instrument, but goes merely to establish a circumstance relative to the acts done by the parties, independent of the [424] written sale, and therefore cannot be rejected. 13 La. Rep. 268. This testimony explains the whole transaction, and puts it before us in its true light; it is clear that the intervenor, although the slaves had been delivered to her, never was put in possession of the bill of sale containing the receipt of the $1300 in dispute, until she gave her note to Ootton, as the balance due by her, in consequence of the settlement of their accounts; and it is thereby obvious that she had not paid the amount of the purchase-money at the date of the instrument, and that it was only after getting her note that Ootton gave her a written title to the slaves by her purchased. This accounts for the season why the same amount was carried in the account current as cash. Ootton, by giving up the bill of sale receipted, considered it as cash at the moment of closing his transactions with the intervenor, or in other words, as an advance by him made to her in cash, for which, at the same moment, she gave him her note, with satisfactory security.

We are satisfied that the defendant owes the whole amount of the note sued on,' and that the intervenor has failed to establish the error by her alleged.

'It is therefore ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed; and proceeding to give such judgment as, in our opinion, ought to have been rendered by the inferior court; it is ordered, adjudged and decreed, that the intervenor’s claim be rejected, and that the plaintiffs recover of the defendant the sum of nineteen hundred and forty-four dollars and eighty-nine cents, with eight per cent, interest per annum thereon, from the 80th of November, 1888, until paid, with costs in both courts to be paid by the said defendant and the intervenor.  