Clements v. Yeates

69 Mo. 623 | Mo. | 1879

Sherwood, C. J.

I. The law is well settled that no action lies in favor of the payee of a draft against the drawee because of the non-acceptance of the latter. As is said in Kimball v. Donald, 20 Mo. 581: “ When acceptance is refused, the object the parties had in view being defeated, the only obligation upon the bill is against the drawer, who is remitted to his original rights in respect to the fund in the hands of his supposed' debtor, and liable to pay according to his original undertaking.” For this reason the petition stated no tacts sufficient to constitute a cause of action.

II. There can be no question that the action in the present instance is brought upon the draft, and upon nothing else. This being true, a recovery must be had upon the instrument sued on, or not at all. Repeated adjudications of this court, if authority were really needed for so plain a proposition, have established that you cannot sue upon one cause of action and recover upon another. Ensworth v. Barton, 60 Mo. 511; Eyerman v. Mt. Sinai Cemetery Association, 61 Mo. 489; Huston v. Forsythe Scale Works, 56 Mo. 416; Robinson v. Rice, 20 Mo. 229; Harrison v. R. R. Co., 37 Mo. 307; Beck v. Ferrara, 19 Mo. 30; Link v. Vaughn, 17 Mo. 585; Duncan v. Fisher, 18 Mo. 403. And we do not regard our code with all its liberal provisions as possessing sufficient comprehensive elasticity to enable this to be done. We, therefore, affirm the action of the trial court, and reverse that of the court of appeals.

All concur.

Reversed.