* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 974, n. 82; Estoppel, 21CJ, p. 1239, n. 70. Appellee, R.B. McLeod, filed his amended bill of complaint in the chancery court of Forrest county against *Page 262 J.O. Rea, Mrs. J.O. Rea, and the Commercial National Bank of Hattiesburg.
The bill avers, in substance, that the complainant and J.O. Rea, during the year 1922, and before that, were jointly interested in the Memphis Nash Motor Company and other like enterprises, that they endorsed certain notes of this corporation during the year 1922, and that these notes, at maturity, were paid by complainant, and that the defendant Rea owes him one-half of the amount so paid; the payment having been made during the year 1923.
The bill further avers that the defendants Mr. and Mrs. Rea are nonresidents; that the defendant bank has in its possession funds belonging to the defendant J.O. Rea to which Mrs. Rea is asserting some claim; that the claim of Mrs. Rea is spurious and void; and that the said money in said bank in truth and in fact belongs to J.O. Rea, and is liable to the payment of his debts.
J.O. Rea answered, denying his indebtedness to the complainant McLeod and averring that the money in the bank belonged to Mrs. Rea.
Mrs. Rea adopted the answer of J.O. Rea, and averred that the money was hers; that the amount thereof was thirty-five hundred dollars, which the bank, by written agreement made on February 4, 1923, had agreed to pay to her, and that the bank was proceeding in good faith to pay her when it was prevented from so doing by the filing of this suit. She asked that the bank be required to pay the money to her.
The defendant bank answered that it had in its possession thirty-five hundred dollars in the name of Mrs. J.O. Rea, and which she claimed as her property, and signified its willingness to pay the money to whomsoever the court should adjudge was entitled thereto.
The chancellor held that six hundred dollars of this money belonged to Mrs. Rea, and that twenty-nine hundred dollars of it belonged to J.O. Rea, and should be *Page 263 subjected to the payment of the debt of J.O. Rea owing to the complainant McLeod, and adjudged, further, that the amount of twenty-nine hundred dollars was less than the amount found by the chancellor to be owing from Rea to McLeod, and Mrs. Rea prosecutes an appeal here. There is no question raised here on the finding of the chancellor that J.O. Rea, was indebted to the complainant McLeod in a sum exceeding twenty-nine hundred dollars.
This record shows that the appellee McLeod is the president of the Commercial National Bank of Hattiesburg. This bank was the successor of the Bank of Hattiesburg Trust Company, a state bank, of which McLeod was also the president.
There had been issued to J.O. Rea and Mrs. J.O. Rea eighteen thousand one hundred dollars of the capital stock of the Nash-Mississippi Valley Motor Company, which absorbed other companies in which J.O. Rea and McLeod were the largest stockholders. The record shows, as we think fairly, that J.O. Rea was the managing officer of the new company, in active charge of the business. At the time of the organization of the last-named company, J.O. Rea became indebted to the Commercial National Bank of Hattiesburg, which advanced a large part of the money to pay for the above-described stock, and, after some time had elapsed, Mr. and Mrs. Rea entered into a written agreement with said bank by which the bank was to sell the one hundred eighty-one shares of stock and apply the proceeds to the payment of J.O. Rea's indebtedness, and pay over to Mrs. J.O. Rea five thousand dollars; also to pay her, while it held the stock by virtue of the assignment, any dividends that might accrue on the five thousand dollars of stock while in the hands of the bank and before its sale. This assignment to the said bank, or its predecessor, was in writing, and signed only by J.O. Rea and Mrs. J.O. Rea. *Page 264
The appellant contends that, because complainant McLeod was president of the bank, he was estopped from asserting his claim in a court of equity, because the assignment made in writing and signed by J.O. and Mrs. J.O. Rea stipulated that five thousand dollars of the proceeds was to be paid to her; that, because the bank is estopped, as we understand counsel's argument, the president of the bank was estopped from asserting his individual claim in a court of equity, and relying mainly upon the case ofEdwards and others v. Sarasota, etc., Co., 246 F. 773, 159 C.C.A. 75, in which case the president of a corporation executed a deed as president for and on behalf of the corporation, containing covenants of assurance that it was unincumbered and full warranty of title, and afterwards he undertook to set up some title or lien in himself which he claimed existed at the time he executed the deed, ignoring the principle that the law will not permit a person to assert a claim which he has induced another to suppose he would not rely on.
There is nothing in this record to indicate that the president of this bank, McLeod, did anything or said anything that caused Mrs. J.O. Rea to believe that he would not assert his individual claim as against J.O. Rea as against his property.
We think the mere statement of the line of authorities relied on by counsel is an answer to the proposition. There must be some representation or inducement or failure to speak when one is due to speak to operate as an estoppel. We think the proof warranted the chancellor in holding that McLeod was not estopped because Mr. and Mrs. Rea had executed an assignment to the bank of which McLeod was president, with a reservation that the bank would pay to Mrs. Rea five thousand dollars. McLeod never had asserted any title to the one hundred eighty-one shares of stock, and we think there is no merit in this contention. *Page 265
The next ground for reversal raised by appellant is that the ledger sheets of the motor corporation were received in evidence by the court over the general objection of the appellant, which ledger sheets tended to establish that ten thousand five hundred dollars of the sum used in payment for said shares of stock was entered on the books of the corporation from the account and as the property of the husband, J.O. Rea. The other seven thousand five hundred dollars admittedly was borrowed by Rea from the Hattiesburg Bank.
It is here now contended, though not stated to the lower court as a ground of objection, that it was not shown that J.O. Rea kept these books, and it was not shown that the books were correctly kept.
The cash journal entries explaining the ledger account of J.O. Rea went in without objection, so that, if it be conceded, which we do not decide, that it was necessary to prove that the books must be shown to have been correctly kept, the same facts were in evidence, and, the ledger entries were only the epitome, or summing up, of his accounts, so that we do not think any harm came to complainant on account of the introduction of the ledger sheets. We cannot say that the chancellor's finding on the facts of the case was manifestly wrong, as there is ample competent evidence not objected to to sustain his finding.
Affirmed.
COOK, J., took no part in this decision. *Page 266