109 Mo. App. 665 | Mo. Ct. App. | 1904
The facts of the case are as follows : On the 24th day of February, 1903, one H. H. Hagan, of Guthrie, Oklahoma Territory, drew a sight draft on Kemper, Bowman & Hillix payable to the order of plaintiff for the sum of seven hundred dollars. On the same day, plaintiff received the draft at Guthrie, where it did business, and credited Hagan with the full amount of $700, and indorsed and forwarded it through its correspondents to defendant bank in St. Joseph, Missouri, for presentation and payment. On March 3, defendant presented the draft to the drawers, who gave their check for its payment. Defendant at the same time accepted the check, stamped the draft paid and surrendered it to the drawees, and gave the Union National Bank of Kansas City, from whom they received the draft, credit for its amount. On the next morning - — March 4 — the drawees informed defendant bank that a newspaper had reported that morning that the drawer, Hagan, had killed himself, and they asked defendant if it could do anything to help them to hold the money, and stated that they had not received the cattle on which the draft had been drawn. Whereupon, defendant’s agent told the drawees that it would assist them in the matter, and did telephone to Kansas City in reference to its payment. The defendant then presented the check it had received in payment of the draft to the
The conceded rule of law is that, if a bank receives a draft for collection and takes in payment a check from the party who is bound to pay such draft, and surrenders the same to him, such collecting bank is liable to its principal for the amount of the check, as an agent authorized to receive money has no implied power to receive a check in payment. [Bank v. Bank, 151 Mo. 329.] And it is admitted that if the drawees had accepted the draft they would have been liable, for the effect of an acceptance is to constitute the acceptor the principal debtor; and if the drawees were
Bnt respondent insists that there is a difference between the payment and acceptance of a bill; and that payment never operates as an acceptance — that the effect of the former is to extinguish the bill and the latter is an admission that the drawee has in his hands funds of the drawer. To support the theory that a payment never operates as an acceptance we are cited to the case of Bank v. Whitman, 94 U. S. 343. It was there held that “a payment to a stranger upon an unauthorized indorsement does not operate as an acceptance of a check, so as to authorize an action by the real owner to recover its amount as upon an accepted check.” It is hardly perceivable how the holding could have been otherwise as the indorsement was without the owner’s authority and consequently as such created no privity of contract between the drawer and drawee. The court did not hold that a payment was not equivalent to an acceptance, but that under the circumstances it was not, because the payment itself was unauthorized.
Under the statute, “no person within this State shall be charged as an acceptor of a bill of exchange unless his acceptance shall be in writing signed by himself or his lawful agent. ’ ’ An acceptance as provided by the statute binds the acceptor to pay the bill, and he can not be heard to deny that he has funds in his hands for the purpose. A payment of a bill is more than an acceptance, for the one is an obligation to pay, the other a discharge of the indebtedness represented by such bill. An acceptance' is an admission that the drawee has the funds in his hands to pay; a payment is also such an admission and, in addition, a discharge of the debt. If the one concludes the drawee it is inconceivable why the other would not. And it is no defense that the drawees were mistaken in supposing that they would have funds in their hands to pay the bill. A mistake of this kind would not relieve them. Bank
But respondent insists that law and right will not. compel defendant or said commission company to pay the debt as the loss was the result of the negligence of plaintiff. But does the evidence show such negligence! Does the mere fact that plaintiff’s agents had a suspicion that Hagan, the drawer of the bill, was not an honest man prove negligence! We think not. The law is that where the bill has passed to the plaintiff without any proof of bad faith in him there is no objection to his title. “Merely putting a party about to purchase negotiable paper upon inquiry is not per se sufficient, nor is gross negligence.” [Edwards v. Thompson, 66 Mo. 468.] And, “the rule that ‘a purchaser is not an innocent holder if there are circumstances connected with the transfer sufficient to put an ordinarily prudent man on inquiry, ’ is uncertain and devoid of uniformity, and no longer the prevailing law of this State." [Hamilton v. Marks, 63 Mo. 167.] And “mere circumstances sufficient to put a prudent man on inquiry is not sufficient.” [Inv. Co. v. Fillingham, 85 Mo. App. 534.] “Ordinarily, one will be charged with notice of a fact who possesses information which puts him upon inquiry, and which, if followed up with diligence, will lead to the ascertainment of truth.” But such rule does not apply to negotiable commercial paper. [Jennings v. Todd, 118 Mo. 296.]
Respondent’s final contention is that there was no
The defendant insists- that justice is clearly with it. That may be true. But the Supreme Court of this
The case was tried before a jury. Among others, plaintiff asked the court to instruct the jury to find for the plaintiff, which the court refused. This was error as under all the evidence, there being no conflict in the testimony whatever, the finding should have been for plaintiff.
The cause is reversed with directions to enter judgment for plaintiff for the amount of the draft with interest from date of demand of payment from defendant.