1 Mo. App. 151 | Mo. Ct. App. | 1876
delivered the opinion of the court.
It appears from the record in this case that plaintiff accepted a draft for $4,221.49 for the accommodation of the firm of Matsou& Henderson, Louisana, Missouri, upon the agreement between himself and said Matson & Henderson, that they would make shipments of hogs to defendant in St. Louis, the proceeds to be applied to the payment of this draft, which had been deposited by the holder in the National Bank of Missouri for collection. After the acceptance of this draft by plaintiff, and after some of the hogs had been already shipped to defendant in accordance with the agreement between plaintiff and Matson & Henderson defendant (who was not a member of that firm) signed and delivered to plaintiff a written instrument purporting to be an article of agreement between plaintiff and defendant, which, after reciting that Matson & Henderson have shipped, and are to continue to ship, hogs to pay off said acceptance, concludes thus: “I agree to appropriate of the net proceeds, as far as it will go, to take up said acceptance. A. S. Matson.” The acceptance matured on December 25th. On January 3d defendant rendered to Matson & Henderson
Plaintiff sues defendant herein for failure to perform the •alleged agreement to appropriate all the net proceeds of the hogs to the payment of the draft; and says that, by reason of this failure, there was left unpaid on said draft the sum of $1,213.20, which plaintiff paid on Febrnary 13, 1872. He lays his damages at $2,000. There was a verdict and judgment in the court below for $1,757.40; and •defendant, having unsuccessfully moved to set the same •aside, brings the case to this court by appeal.
The court, at thednstance of plaintiff, granted an instruction to the effect that, if defendant, on a state of facts substantially as they have been set forth above, placed the net proceeds, $3,021.20, to the credit of Matson & Henderson
Also the following:
“Although the jury may believe from the evidence that,, at the time defendant made the deposit at the National Bank of the State of Missouri, he told the officers of said, bank for what purpose he desired the amount deposited appropriated, that does not relieve the defendant from his-obligation to the plaintiff, if you shall find that he agreed to appropriate the same to the taking up of the draft drawn, on plaintiff by F. C. Todd.”
To the giving of these instructions defendant excepted.
The court, at the instance of defendant, gave the following instruction:
“If it appears from the evidence that the defendant took the whole net proceeds of his sale of hogs under the contract sued on to the bank mentioned in the contract, and directed the officer of said bank receiving the money to. apply it according to the terms of said contract, a copy whereof was then and there exhibited to said officer for that, purpose, and the bank having in its possession the draft shown in evidence, then the defendant is not liable for a. misappropriation of such money by the bank, and the-plaintiff cannot recover therefor.”
Defendant asked the following instruction, which was-refused, and defendant excepted:
“If it appears that the draft drawn by Todd & Bartlett, in favor of Matson & Henderson, and accepted by Bartlett, was placed by the holder in the National Bank of the State of Missouri for collection, and that defendant was. informed of the fact by the plaintiff at the time of the making of the contract sued on, then the said bank, for all*155 the purpose of this suit, was the agent of the holder of the-draft, and of the plaintiff so far as he was interested in its-collection, and if there was any failure by said bank to-properly apply the money paid by defendant for application to said draft, then the defendant is not responsible to the-, plaintiff therefor, and the latter cannot recover in this action.”
This last instruction was warranted by the evidence, and. is a correct statement of legal principles. Defendant could not take up the draft, because the funds ill his hand were' insufficient; and if, in obedience to his instructions, he paid the money into tbie bank, with directions to apply it upon plaintiff’s draft, his responsibility was at an end. The' refusal of this instruction necessitates the reversal of the case; and, as a new trial must be had, we will look into-the other questions presented by the record.
The contract sued on expresses no consideration, it is-said, and it is insisted that it was error in the court to-admit it in evidence against the objection of the defendant, based upon the theory that it was not competent to show a-consideration aliunde. But in this actioii of the court-there was no error. It is clear, by the common law, that-there must be a consideration for a written contract not. under seal, and it is equally clear that this consideration need not be expressed in the written contract so as to make-a part of it, but where none is expressed in an action on-such a contract a consideration may be averred, and it may then be proved by oral evidence. In .some of the States-this rule has been held to apply even in cases within the-statute of frauds; though the English rule is that, in. cases within the statute, the consideration must be in. writing. But where the contract need not be in writing,, if reduced to writing, the consideration may be shown,, though not expressed. This contract was not a contract-to answer for the debt of another, and its consideration could, undoubtedly, be shown.
But does any consideration to support the contract.
But, after verdict and judgment, it is too late to consider that, if, waiving the question of an express promise from ■defendant to plaintiff, enough facts are alleged and proved to warrant a recovery. If money is handed by A to B, for the use of C, and C consents to the trust, C may have an action for it. Now it clearly appears that these hogs were sent by Matson & Henderson to defendant, upon the trust that he would sell them and apply the net proceeds to the payment ■of the accommodation paper upon which plaintiff was liable as acceptor. Matson & Henderson could, therefore, have recovered from defendant if he had converted these funds
We have gone thus at length into the question of consideration because upon that question the case seems really to hinge. But the case must have been reversed on the ground that the instructions are erroneous and furnish no-intelligible direction to the jury. In the second instruction for plaintiff the jury are told that, if defendant agreed to-appropriate the money in question to taking up plaintiff’s, draft, the fact that he told the bank officers to what purpose, to apply the money would not relieve him ; and in the instruction of defendant they are told that, if defendant, gave the officers the directions detailed in the testimony as to the application of the money, he is completely discharged. These instructions cannot stand together. There is no question that defendant paid in the whole money received to the bank; there is no question as to what directions were given to the bank officers as to the application of the money, if any directions were given at all, as to which, also, there seems to be no reasonable doubt. The only possible question as to the money is whether the statement on the account of' sale, “ deposited by me this day at the National Bank to your credit,” is to be taken as contradicting the testimony that
The judgment of the Circuit Court will be reversed and the cause remanded.