44 Mo. App. 129 | Mo. Ct. App. | 1891
The plaintiff sued the defendant on the following instrument:
“ Thomas E. Hall, Business Manager,'
“Hall & Company, Kansas City, Mo. “ Rogersville, Mo., July 27,1889.
“November 1, afterdate pay to the order of Thomas E. Hall one hundred dollars ($100), with exchange and eight-per-cent, interest from date, if not paid when due, value received, and charge to the account of
“Hall & Co.,
“By Tiiomas E. Hall.
“ To D. H. Goode, Roger smile, Mo.
“Accepted.
“D. H. GrOODE.”
On the back of the bill was this indorsement:
“Pay Christian County Bank,
“Hall & Co.,
“By Thomas E. Hall.”
The 'allegation in the original petition was thac Hall & Co., by their business manager, Thomas E. Hall, transferred the written order, which the plaintiff -designated as a bill of exchange, by indorsement to the plaintiff, and that the transfer was made prior to the maturity of the bill. The defendant admitted his signature, but denied that he executed the paper. He -averred that Thomas E. Hall obtained the signature by falsely representing to him that it was only a statement •of his property, which under the rules of “Hall & Co.” it was necessary for him to give in order to-procure the agency for the sale of a certain patent designated ¡as ‘ ‘ Hall’s Hydro-Carbon Burner,5 ’ which as Hall claimed was owned by Hall & Co., and that the alleged bill of •exchange was a fraud and swindle, and was not •supported by any consideration.
On the trial of the cause the plaintiff read in evidence the face of the writing, and offered to read the assignment, which the court excluded on objection made by
The foregoing is believed to be a sufficient statement for a proper understanding of the legal questions presented by the record.
We are of the opinion that the paper sued on is a negotiable bill of exchange. Some authorities hold that a bill which provides for the payment of exchange is rendered non-negotiable, because the amount to be paid is thus made uncertain, by reason of the fluctuations of the rate of exchange. But all of the adjudicated cases, so far as our research has gone, concede that this rule has no application when the bill is made payable at the place where drawn, for the simple reason that there can be no exchange on such a bill. 1 Daniels on Neg. Inst., sec. 54; Clauser v. Stone, 29 Ill. 114; Hill v. Todd, 29 Ill. 101.
It will be observed that it is written in the bill of exchange that, if it is not paid at its maturity, it is made to bear six-per-cent, interest from date. It is
In opposition to this view the defendant relies on the cases of First National Bank v. Gay, 63 Mo. 33 ; First National Bank v. Marlow, 71 Mo. 618, and First National Bank v. Gay, 71 Mo. 627. In those cases the court held that the instruments sued on were merely choses in action, or ordinary contracts for the payment of money. The judgments of the courts were based on the fact, that the instruments provided that, if the debts were not paid at a specified time, then certain attorney’s fees should be paid. This, in the opinion of the court, rendered the principal sums to be paid uncertain and contingent. In those cases the payment of the additional sums for collection necessarily depended upon the action of the holders in placing the instru.ments in the hands of attorneys for collection. If this was not done, there could of course be no such charge. This made the additional charges a pure contingency, depending entirely on the action of the holders. It seems to us that the doctrine of those cases stands on the border line, and ought not to be extended. As the present case does not come fairly within its scope, we will rule that the instrument here sued on is a bill of exchange.
The action of the court in rejecting the last offer of proof was based, as we assume, upon the idea, that the plaintiff was bound by the action of its cashier in filling up the assignment over the name of Hall, the indorser. It is a well-established rule of commercial law that the holder of a negotiable instrument under a blank indorsement may fill up the blank. Goodfellow v. Landis, 36 Mo. 168; Morrison v. Smith, 13 Mo. 234. But this
With the concurrence of the other judges the judgment of the circuit court will be reversed, and the cause remanded with instructions to proceed in conformity with this opinion. It is so ordered.