WILEY v. PEOPLES BANK AND TRUST COMPANY
438 F.2d 513 (1971)
Marcus WILEY, James Tate and James Irby, a partnership doing business as Wiley, Tate & Irby, Plaintiffs-Appellees,
v.
The PEOPLES BANK AND TRUST COMPANY, Defendant-Appellant.
No. 29784
United States Court of Appeals, Fifth Circuit.
February 10, 1971.
C. R. Bolton, W. P. Mitchell, Jeremy J. Eskridge, Mitchell, Rogers & Eskridge, Tupelo, Miss., for defendant-appellant.
Pat D. Holcomb, Clarksdale, Miss., John F. Kizer, Milan, Tenn., for plaintiffs-appellees.
Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
On Petition For RehearingCLARK, Circuit Judge:
The hands on the clock had turned past the midnight deadline fixed by the Mississippi Uniform Commercial Code (MUCC),1 not once, but many times before the Payor Bank returned unpaid the demand instruments sued on here. In such a circumstance, the only avenue of escape from the Code's automatic visitation of accountability upon the bank was for it to establish that the instruments were documentary drafts, which are excepted from the deadline. A trial before the lower court, sitting without a jury, resulted in a determination that the instruments were not documentary drafts and a judgment in favor of payees for the face amount of the instruments together with interest from the date of demand. We conclude that the items were documentary drafts and reverse. Plaintiffs, Marcus Wiley, James Tate and James Irby, were partners engaged in buying and selling used cars under the trade name, Wiley, Tate & Irby. Over an extended period of time Wiley, Tate & Irby sold a number of automobiles to Billy Houston, a sole proprietor doing business as Houston Auto Sales (Houston). In connection with each purchase Houston executed and delivered to Wiley, Tate & Irby a negotiable instrument drawn on the defendant, Peoples Bank & Trust Company of Tupelo, Mississippi (Payor Bank). Upon delivery of each negotiable instrument, the respective automobiles sold were at once turned over to Houston. All transactions were consummated at Wiley, Tate & Irby's place of business in Milan, Tennessee.
In each instance Wiley, Tate & Irby deposited the instrument they received from Houston in the Milan Banking Company (Depositary Bank) and thereupon were authorized by that bank to draw against such money. The Depositary Bank transferred the instrument to Union Planters National Bank of Memphis, Tennessee (Intermediary Bank), which transferred the same to the Payor Bank.
Nine instruments are involved in this suit. The instruments contained a number of variations both in text and form but each of them complied with the MUCC definition of a check.2 They were drawn on a bank, signed by the maker and contained an unconditional order to pay a sum certain on the demand of the payee. Eight of the instruments were written on envelopes. One was prepared on a regular check form.All of the instruments except the printed check form were on envelopes which arrived at the Payor Bank sealed. One of the instruments had been presented several times and returned unpaid on each occasion. Two of the instruments were presented on two occasions and returned unpaid both times. No envelope was ever opened during the periods of time the instruments remained in the possession of the Payor Bank. When opened at the time of trial, four of the envelopes contained automobile title documents while the other four were empty. When the check form was received it had automobile title papers attached by means of a staple and the face of the instrument stated, "Title attached." All of the instruments in suit were retained by the Payor Bank from the various dates of their last (or only) presentment until September 25, 1968, when they were bundled together by the Payor Bank and returned with notice of nonpayment. The interval between these dates of final presentment and the date of their last return ranged from a minimum of 12 days to a maximum of over three and a half months. All of these times were well past the midnight deadline established by the MUCC.3
1. This act is codified as Miss.Code Ann. § 41A.1-101 to 41A:10-105, inclusive. (Spec. UCC Supp.1967). "Midnight deadline" with respect to a bank is midnight on its next banking day following the banking day on which it receives the relevant item or notice, or from which the time for taking action commences to run, whichever is later. Miss.Code Ann. § 41A:4-104 (Spec. UCC Supp.1967).
2. Miss.Code Ann. § 41A:3-104 (Spec. UCC Supp.1967).
3. See n. 2, supra.
4. Miss.Code Ann. § 41A:4-302 (Spec. UCC Supp.1967).
5. Miss.Code Ann. § 41A:4-104(1) (f) (Spec. UCC Supp.1967).
6. Miss.Code Ann. § 41A:3-104(2) (b) (Spec. UCC Supp.1967).
7. Miss.Code Ann. § 41A:1-201(21) (Spec. UCC Supp.1967).
8. See, Fed.R.Civ.P. 15 and Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). 9. Miss.Code Ann. § 41A:4-501 — 4-504 (Spec. UCC Supp.1967).
10. Miss.Code Ann. § 41A:3-511(4) (Spec. UCC Supp.1967).
11. 18 Kan.L.Rev. 697, n. 48 (1970).