139 Mo. App. 110 | Mo. Ct. App. | 1909
(after stating the facts). — The verdict in this case should have been given on the separate counts, for though the first count may be taken as a broad statement of what is more particularly set forth
The question occurs just here whether a verdict would stand on either the first or third counts, upon what facts were in testimony regarding the Bailey shipment. The answer to this inquiry depends on the adequacy of the telephone conversation between Hobson and Bright, to entitle plaintiff, in equity and good conscience, to recover the proceeds of the Bailey cattle as money had and received to its use. Counsel for both parties have treated this point as though it were controlled by our statutes requiring an acceptance of a bill of exchange to be in writing. [R. S. 1899, sec. 443; Neg. Inst. Law, sec. 132, 1 Mo. Ann. Stat., sec. 463; Clements v. Yeats, 69 Mo. 623; Flato v. Mulhall, 72 Mo. 522.] The draft was not an inland but a foreign bill of exchange. [Neg. Inst. Act., sec. 129; 1 Mo. Ann. Stat., sec. 463.] Hence we do not see that our statute cuts any figure, as the law of the place of performance of the agreement Avould govern, and that is Illinois. What the law of Illinois is in this respect was not proved, and the common law must furnish our rule of decision. At common law a breach of a verbal agreement to accept a bill of exchange when draAvn, gives sufficient ground for an action against the promisor by the payee, if the latter relied on the promise in taking and discounting the draft. [2 Randolph, Com. Paper, secs. 604, 609, 613 and 614; Hall v. Bank, 133 Ill. 234; Brown v. Ambner, 66 Md. 391; Ruiz v. Renauld, 100 N. Y. 256; Seaboard Bank v. Burleigh, 147; Bissell v. Lewis, 4 Mich. 450.] And the authority to be cited next, says there has been no statutory change in Illinois to require an acceptance, or agreement to accept, to be in writing. As to the point in hand, this case is identical, in principle with Hall v. Cordell, 142
Where is the proof of a general agreement between Hobson and defendant of the nature stated in the second count; to-wit, for Hobson to buy stock, ship it to defendant and defendant to remit the proceeds to plaintiff? In repeated perusals of the record we have not been able to find a trace of evidence of that kind. On the contrary, the entire testimony for plaintiff goes to establish a contract made by McCune as plaintiff’s cashier, with Bright, president of defendant company, and Hobson — a direct contract between the bank and defendant, and not one between Hobson and defendant on which the bank relied. Neither was there any testimony to support a contract of the latter character given by the witnesses for defendant; for they swore unequivocally the transaction in regard to Hobson’s shipment of the cattle and the disposition of the proceeds, • was not based on a particular arrangement of any species. If the contract stated in the second count had been proved, we think likely plaintiff might have maintained an action on it as one made for its benefit, since the cases now hold a third party may maintain an action on a contract entered into for his benefit, even though he was not named in it; if it was not merely for indemnity — that is, to save the obligee harmless in •designated particulars — but to do affirmative acts like paying money. [Bank v. Leyser, 116 Mo. 51; State v. Railroad, 125 Mo. 596; Porter v. Woods, 138 Mo. 539; Crow v. Stinde, 156 Mo. 262.] If the agreement alleged in the second count had been established, then so far as
The circumstance that defendant had habitually honored Hobson’s drafts in favor of plaintiff or else had remitted the proceeds of shipments to plaintiff, knowing the latter had furnished money to pay for the cattle, would not bind defendant to turn over the proceeds of any particular shipment to plaintiff unless there was some agreement, general or special, to do so. That is to say, a commission merchant is not bound to send to a certain bank the proceeds of property he sells for a customer, merely because he knows said bank had been furnishing the customer money to buy the shipments and the proceeds had been remitted to the bank pursuant to the customer’s order. The bank would not have a lien on a shipment or its proceeds unless a bill
We hold no error was committed in refusing the fourth and fifth instructions asked by defendant, because each of them was too narrow in the facts hypothesized. They failed to take account of the evidence tending to establish a contract between defendant and plaintiff about the disposition of the proceeds of shipments.
The judgment is reversed and the cause remanded.