Appeal from Circuit Court, Warren Coun- | remain the property of K. till the timber is de

Section 3849 of the Mississippi Code of 1906, which taxes peddlers, is in the follow-dence of what business plaintiff was engaged in, ing language:

"Contract between C. A. Kerl and I. S.

Smith. I this day sell to C. A. Kerl what timber I have on land belonging to me in the Lard neighborhood for one dollar per thousand on the stump, for which I received one hundred dollars in payment in one roan horse, which shall remain the property of 7 said C. A. Kerl until said timber is deliverGeo. ed, and if I have not got one hundred thousand I shall make up the difference in money. "[Signed] I. S. Smith, X."

Miss. 506, 9 South. 350, 24 Am. St. Rep. 283; |
Journey v. Priestly, 70 Miss. 586, 12 South.
799; Foundry Co. v. Ice Co., 72 Miss. 615,
18 South. 364; Polle v. Rouse, 73 Miss. 717,
19 South. 481; Young v. Salley, 83 Miss. 364,
35 South. 571; George v. Hewlett, 70 Miss.
1, 12 South. 855, 35 Am. St. Rep. 626; 4
Wigmore, § 2461; 4 Wigmore, p. 3490, § 2465;
4 Wigmore, p. 3493, § 2466; Donworth v.
Sawyer, 94 Me. 243, 47 Atl. 521; Century
Dictionary; Webster's International Dic.;
United States v. Stores (C. C.) 14 Fed. 824;
Hubbard v. Burton, 75 Mo. 65, 67; Wilson
v. State, 17 Tex. App. 393.

M. McCullough, for appellee.

MAYES, J. This contract is ambiguous in some of its aspects, but it is plain that the parties thereto intended that the title to the

horse should remain in the seller until the horse had been paid for, either in timber of the value of $100, or in so far as the value of the timber would go to make up the $100, the balance to be paid in money. Any other

construction of the contract narrows its

meaning to such an extent as to nullify its plain intent. Under numerous decisions of this court, not necessary to be here cited, but which are found in the brief of counsel for appellant, this court has held that the seller, under a contract of this kind, could maintain the action of replevin.

Action by the Cedar Rapids National Bank against V. T. Lundy. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

She

This is a suit by the appellant against the appellee on a note which appellee, by her husband and agent, W. B. Lundy, gave to the Barton-Parker Manufacturing Company, which was in turn assigned to appellant. There was a plea of non est factum. declares that it was not her purpose, nor did she authorize her husband, to sign any notes; but it was represented to him by the agent of the company that it was a contract of purchase. The plaintiff alleged that it was an innocent purchaser for value without notice.

McIntosh Bros., for appellant. D. C. Enochs, for appellee.

MAYES, J. On an examination of this entire record, it is manifest to us that the peremptory instruction asked for on the part of plaintiff should have been given. There was no question in this case to be submitted to a jury; it plainly appearing, from the admissions made in the letters written by appellee to the Barton-Parker Manufacturing Company, that the notes in question were signed by him. This is independent of the equivocal denial of appellee in his testimony. The appellee admits buying and getting the goods, amounting to $480, and in a letter of August 28, 1907, writes inclosing check for $100 in part payment for the goods. Again, on October 14th, another check for $100 was sent. On October 24th the appellee writes, complaining that he could not sell the goods, and says: "I realize you have put the notes

It was competent for the plaintiff to show what was meant by the word "timber" in this contract, and it was error for the court to exclude testimony offered for this purpose. The use of the word "timber" in the contract, with nothing to explain in the contract what kind of timber is meant, is not so accurate a designation of what was sold as to pre-in bank, but you could get same. I have clude investigation as to what was meant by it in this ambiguous contract. It was permissible for plaintiff to show what particular business he was engaged in and known to defendant, and what the common acceptation of the word "timber" meant in that business and at the place where he was conducting it. Such testimony is in no sense contradictory of the terms of the contract, but it is essential to explain its meaning, since the

contract itself does not do that. Reversed and remanded.

(96 Miss. 805)

CEDAR RAPIDS NAT. BANK v. LUNDY.

(No. 14,148.)

(Supreme Court of Mississippi. Jan. 24, 1910.) BILLS AND NOTES (§ 517*)-ACTIONS-SUFFICIENCY OF EVIDENCE-EXECUTION OF NOTE.

In an action on a note, evidence held to show that it was signed by defendant.

[Ed. Note. For other cases, see Bills and Notes, Cent. Dig. § 1807; Dec. Dig. § 517.*] Appeal from Circuit Court, Simpson County; R. L. Bullard, Judge.

In

made a mistake in buying too heavy, and now
I am cramped for funds. This is why I ask
you to allow me to return the jewelry."
Again, on December 16th, he writes: "A pay-
ment is due you to-day by me under the two
contracts I sign, and which you hold."
this same letter it is true that appellee de-
nies making the notes; but it is after all the
above admissions, and after the attempt on
his part to get the contract rescinded. This
is too plainly an admission on the part of
appellee of the signing of these notes to ad-
mit of any contradiction.

Reversed and remanded.

insolvent, without informing the depositor of [for the Ocean Springs branch of the Scransuch condition, there may be a conviction of a director, the bank having been kept open by the directors with knowledge of its status, though he did not manually receive the deposit.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. § 211; Dec. Dig. § 84.*] Appeal from Circuit Court, Jackson County; W. H. Hardy, Judge.

"To be officially reported."

Edmond Mitchell was indicted under Code 1906, § 1169. A peremptory instruction to find him not guilty was given, and the State appeals. Error.

See, also, 48 South. 963.

B. P. Harrison, Dist. Atty., and Geo. Butler, Asst. Atty. Gen., for the State. Fitts & Leigh, for appellee.

ton State Bank, the said O. Randall then and there being the president of the said branch bank, and the said Louis Lundy being then and there cashier of said branch bank, a corporation incorporated under the laws of the state of Mississippi, and domiciled in said county, and engaged in the business of receiving on deposit the money and other valuable things of other persons, and as such directors and managers aforesaid, being then and there conducting the business of receiving on deposit the money and other valuable things of other persons for the said Ocean Springs branch of the said Scranton State Bank, the said branch bank being then and there wholly insolvent, and the said Louis Lundy, H. S. Rourke, J. W. Stewart, Edmund Mitchell, and O. Randall, directors, managers, and officers aforesaid, then and there having good reason to believe that the said branch bank was insolvent, did then and there unlawfully and feloniously receive a deposit of money in the sum of ninety-five dollars from one Mrs. Aline Phelps, a depositor, the said money being then and there "1169 (1089). The Same; Removing, Se- of the value of ninety-five dollars, in the lecreting or Concealing Assets of Bank, Re- gal and current money of the United States ceiving Deposits When Bank Insolvent, etc. of America, which sum of money was then -If the president, manager, cashier, teller, and there received for deposit in said branch assistant, clerk, or other employé or agent bank; and the said Louis Lundy, cashier, of any bank or broker's office or establish- H. S. Rourke, J. W. Stewart, Edmund Mitchment conducting the business of receiving ell, and O. Randall, directors, managers, and on deposit the money or other valuable officers aforesaid, did not then and there, or things of such persons, shall remove or se- at any time prior thereto, inform the said crete or conceal the assets or effects of such Mrs. Aline Phelps, a depositor aforesaid, establishment for the purpose of defrauding that the said branch bank was then and any of the creditors of the establishment, or there insolvent-against the peace and digshall receive any deposit knowing, or hav-nity of the state of Mississippi." ing good reason to believe, the establish- The facts summarized make this case clear ment to be insolvent, without informing the depositor of such condition, on conviction, he shall be imprisoned in the penitentiary not longer than five years."

WHITFIELD, C. J. The appellant, along with certain other directors and managing officers of the Ocean Springs branch of the Scranton State Bank, the parent bank being at Scranton, Miss., was indicted under the last half of section 1169 of the Code of 1906, which is in the following words:

beyond all reasonable doubt: The Scranton State Bank was a banking corporation organized under the laws of the state of Mississippi, with branch banks at Moss Point There were three counts in the indict- and Ocean Springs, Jackson county, Miss. ment. The first count charged that the de- All of the books of the bank and all of the fendants knew that the said branch bank loans of the bank were kept and made at the was insolvent at the time of the reception office of the parent bank in Scranton, and the of the deposit, the second count charged only functions the branch banks performed that they had good reason to believe that the were to receive and pay out deposits. Edbranch bank was insolvent, and the third mund Mitchell, appellee, resided and did count charged that the defendants had good business in Scranton, and was at the date of reason to believe that both the branch bank the reception of the deposit, and had been and the parent bank were insolvent. All for many years prior thereto, one of the dithree counts charged that the said branch rectors of the said Scranton State Bank, and bank was insolvent at the time of the recep- as such director was then and there one of tion of the deposit. We set out below in the managing officers of the said bank. As full the second count of the indictment, such director, and necessarily one of its that the precise crime charged may be seen: managing officers, appellee was indicted un"And the grand jurors aforesaid, upon der section 1169, Code 1906, together with their oaths aforesaid, do further present the other directors and officers of said bank, that Louis Lundy, H. S. Rourke, J. W. Stewart, Edmund Mitchell, and O. Randall, on the date aforesaid, in the county aforesaid, being then and there and for a long time prior thereto directors and managers in and

for receiving a deposit of money in the branch bank at Ocean Springs, in said county and state, while said Scranton State Bank was in an insolvent condition, and "when then and there the said appellee knew, or

had good reason to believe, that the said Scranton State Bank was insolvent." To this indictment the appellee entered a plea of not guilty, and on this issue a jury was legally drawn and impaneled to try said cause, and the state then submitted its case, showing the above facts, together with the following facts; that is: That at the time of the reception of the deposit charged in the indictment against appellee the appellee was not in the branch bank, nor was he in the town of Ocean Springs, but was at said time in Scranton, a place some 14 miles from the place where said deposit was received, going about his ordinary everyday duties. At the conclusion of the evidence offered for and on behalf of the state, the defendants announced that they had no evidence to offer, but filed a motion to exclude the evidence offered on the part of the state, and requested the court to instruct the jury to find peremptorily the defendant not guilty of the crime charged.

managing officers and directors of the said branch bank knew the bank was insolvent, but did not close the doors of the bank when they knew it had become insolvent, and did not give any instructions to cease the reception of deposits, although said insolvency was well known to them.

The main defense pressed by the appellee, this being an appeal by the state to settle the legal question involved in the giving of the peremptory charge for the defendant and the refusal of the charge indicated supra for the state, was that, under this statute, no one of the officers or employés of a bank can be convicted unless the particular employé or officer indicted actually manually received the deposit, etc. If this be the true construction of this statute, it might as well be repealed; for it is obvious that, under such construction, about all that the officers of such an insolvent bank need do is to place some one at the window of the insolvent bank to receive deposits who is thoroughly The state then requested the court to in- ignorant, and who is kept in ignorance, of struct the jury in substance as follows: "That the condition of the bank. If such person even though the jury might believe that the should receive a deposit, being so ignorant, defendant, the appellee, was not present at he can truthfully say he knew nothing of the time of the reception of the deposit the condition of the bank, and claim an accharged in the indictment, and even though quittal. If any officer of the bank is indictthey might believe from the evidence thated, he can escape under such construction by he did not know of this specific deposit being made in said branch bank, yet if the jury further believed from the evidence beyond a reasonable doubt that the defendant was a director in the Scranton State Bank, and that said branch bank at Ocean Springs on the date laid in the indictment was kept open through the direction of said appellee and the other directors of the bank for the reception of deposits, and further believed from the evidence beyond a reasonable doubt that the appellee knew, or had good reason to believe, on said date, that the said bank was in an insolvent condition, then you should find the defendant guilty as charged." The motion to exclude the evidence offered by the state and the peremptory instruction prayed for by the appellee to find the defendant not guilty were granted by the court, and the instruction prayed for by the state was refused, to which actions of the court the state excepted, and the said cause was by the district attorney, on behalf of the state, appealed to the Supreme Court of the state of Mississippi to test the questions of law involved. It is shown that the deposit was actually received by Louis Lundy, the cashier of the said branch bank at Ocean Springs; that this defendant at that time was some 14 miles away, at Scranton, where the parent bank was located. It is perfectly clear from the evidence that the said branch bank was utterly insolvent on the day of the reception of this deposit, and had been for some time prior thereto; that the said branch bank was kept open for the reception of deposits under the authority of the di

saying that he did not actually receive the deposit. Such a construction is monstrous, in view of the well-known purpose of the Legislature in enacting this statute. This wholesome statute first appears in our laws in the admirable Code of 1880, prepared by ex-Chief Justice Campbell. It was obviously intended to prevent the existing evil on the part of insolvent banks of perpetrating the gross and outrageous fraud upon the confiding public of receiving money from depositors when the bank was insolvent, and known by its officers to be insolvent, without warning such depositors by telling them of the insolvent condition of the bank, which information would, of course, enable such intending depositors to withhold the deposits and thus prevent themselves from being robbed.

The precise point now presented for decision has never been passed upon by this court up to this time, and the case is, therefore, one of the greatest importance to, the public. Many such statutes of like character and with the same object in view, varying somewhat, of course, in their phraseology the one from the other, have been enacted in many other states of the Union, and have been construed by the Supreme Courts of those states. We will examine now some of those decisions.

In the case of State v. Henry Eifert, 102 Iowa, 188, 65 N. W. 309, 71 N. W. 248, 38 L. R. A. 485, 63 Am. St. Rep. 433, the court say:

"The eighth paragraph of the court's eharge reads: 'In determining whether the defend

of C. H. Mohling, you are instructed that and refuse deposits, he had no reason to susit is not necessary that the evidence should pect or believe that his orders would not be show, or that you should find, that the de- obeyed. It cannot, therefore, be said that fendant in person received such deposit, nor he knowingly received and accepted the dethat he was personally present when it was posit when it was handed to his son, and by received from said Mohling, if received at him accepted, without the father's knowlall. It is enough if it was received by the edge, and against his express directions. cashier or agent of defendant under his au- When, however, he arrived home that eventhority. But you are further instructed that ing, he became acquainted with all the facts. even though the defendant instructed Theo- He then knew that this deposit had been dore Eifert to close the bank, and refuse to accepted by the son after he had directed receive or accept further deposits, and that, him to take no more deposits; he knew who after such instructions to so refuse deposits, made the deposit; he knew he was then inthe said Theodore Eifert did accept and re- solvent, and that he had been before the son ceive from said Mohling the deposit in ques- had received the deposit; and, knowing all tion, if so you find from the evidence, still, the facts, he did not repudiate the transacif the defendant, with knowledge thereof, tion, but retained and accepted the money, accepted and retained as a deposit the at the same time knowing that his bank amount so received from said Mohling by would never open again. It seems to us said Theodore Eifert, and placed among and that when defendant, after full knowledge treated it as a part of the funds or assets of all the facts, on the evening after his reof the bank, having full knowledge from turn, failed to repudiate the act of his son, what source and under what circumstances and took no steps looking to a return of the and by whom it was received, he will be deposit to Mohling, he then knowingly redeemed to have knowingly accepted such ceived and accepted the deposit. It must sum as a deposit. If, however, such deposit be borne in mind that this is not a civil acwas so received without his authority, and tion for damages for the recovery of the was not accepted by him, if at all, with full money deposited. It may be that in such a knowledge of the manner and circumstances case recovery could be had of the defendant, of its being deposited, if at all, then he will notwithstanding the deposit was received by not be deemed to have knowingly received or his agent contrary to his directions. But the accepted such deposit.' Exception is taken gist of the offense charged in the prosecuto so much of this instruction as relates tion is in knowingly receiving and accepting to the action of the defendant in knowingly a deposit, knowing that he was then insolaccepting and retaining the deposit, after vent. Surely one whose agent, without his full knowledge from whom and under what knowledge or authority, and in disobedience circumstances it had been made. The argu- of his express instructions, receives and acment of defendant is that when the deposit cepts for his principal money as a deposit, was received and accepted by defendant's will not by such act be rendered liable crimson, and entered upon the books of the bank inally for knowingly receiving and accepting and upon the depositor's book, the whole the money; but it cannot be doubted that, transaction was concluded. Now, the facts after coming into possession of all of the appear to be that the son had for a long facts, the principal may so ratify the act time been in the bank, assisting his father; theretofore done as to make it binding upon that the father was in the city of Waverly himself, and the basis of a criminal liability. when the son, who had charge of the bank, If the defendant had, on being acquainted received the deposit; that it was received with what had been done, promptly disavowon the afternoon of August 15, 1893, and sev-ed the act of his son, and returned the deeral hours after the son had received a telephone message from his father to close the bank and to take no more deposits; that the father returned to Tripoli the same evening, and then learned that this deposit had been received, contrary to his orders; that said money was put into the assets of the bank; and that defendant never paid or tendered it back to Mohling. Now, when did defendant 'knowingly accept and receive' this money as charged in the indictment? We think he must be said to have done so when he returned home and first knew of the fact of its receipt. If he had given no directions to stop business and refuse further deposits, then it might be said that he should be concluded by the transaction when the money was in fact received by his son, who had authority to act for him. But, having ex

posit to Mohling, he would not have been guilty, as it could not then have been said that he had knowingly received and accepted the deposit."

In the case of Baker v. State, 54 Wis., at page 376, 12 N. W., at page 16, the court say:

"The manifest object of the statute in question was to suppress the business of banking or brokerage by any insolvent person, company, or corporation. It therefore inflicts punishment upon persons so engaged, knowing the fact. A banker is one who traffics in money, receives and remits money, negotiates bills of exchange, receives money in trust, to be drawn again, or its equivalent, as the owner has occasion to use it. Banking is the business or employment of the banker, or the business of the bank. A broker is one who acts as agent, middleman, or nego