Fennell ex rel. Fennell v. McGowan
Mississippi Supreme Court
Error to the Circuit Court of Marshall Comity. Hon. J. W. C. Watson, Judge. The case is sufficiently stated in the opinion of the court. 1. The court below instructed the jury, for the defendant, that the payment by Stith of his note to Falconer was, as to McGowan and all subsequent holders, a nullity. We think this was error. The most that McGowan could claim would be, that as to him the said payment was voidable.
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Error to the Circuit Court of Marshall Comity. Hon. J. W. C. Watson, Judge. The case is sufficiently stated in the opinion of the court. 1. The court below instructed the jury, for the defendant, that the payment by Stith of his note to Falconer was, as to McGowan and all subsequent holders, a nullity. We think this was error. The most that McGowan could claim would be, that as to him the said payment was voidable. In law, there is a clear and well-defined distinction between the words “void” and “voidable:” If a nullity, McGowan could not, by any act of his, ratify and make the payment a…
1Opinion of the CourtChalmers, C. J.
Howard Falconer borrowed from McGowan $500, giving his own note and depositing as collateral a note for $1,500 on E. S. Stith. Stith subsequently paid to Falconer the amount due on his note, well knowing that it had been hypothecated to McGowan, but relying upon Falconer’s promise to take it up and surrender it, which the latter failed to do. Subsequently to this payment by Stith, McGowan sold the Falconer note to John D. Fennell, agent of plaintiff, M. T. Fennell, and with it delivered the collateral Stith note. Fennell held both notes until the Stith note had become barred by the Statute of…
2Cases cited1 opinion
- Love v. StoneMississippi Supreme Court · 1879
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- Farm Investment Co. v. Wyoming College & Normal SchoolWyoming Supreme Court · 1902
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