Downs v. Pacific Express Co.
135 Mo. App. 330
Mo. Ct. App.
1909
Check Treatment
GOODE, J.

(after stating the facts). — It will be perceived the question in dispute is -whether or not defendant is liable for any interest on the sums called for by the money orders and for the costs of the case. It disputes liability because no demand was made for the payment of the amounts stated in the orders before the action was begun; and invokes in support of its position our statute which says the fact that no demand for the subject-matter of the suit was made prior to its institution, shall not be available to the party, unless it is expressly set up by way of defense in the answer or replication, and is accompanied by a tender of the amount due; in which case, if the plaintiff will further prosecute his suit and shall not recover a greater sum than is tendered, he shall pay all costs. [1 Mo. Ann. Stat., sec. 1575.] The sums called for by the orders were deposited with the clerk of the court and tendered to plaintiff in defendant’s answer. This was set out in the answer filed to the amended petition, but it is fairly inferable from the record the tender had been made in the original answer. Hence defendant says it complied with the statute, and inasmuch as no demand was made before the suit was instituted, cannot be held liable for either interest or costs. The declarations of law show the court, held a demand was needed to put defendant in the wrong and impose on it the payment of interest and costs, but held, too, the institution of this action was a sufficient demand for the purpose. The statute cited supra was meant to prevent actions from being defeated because no prior demand was made for the subject-matter of them when such a demand was a condition precedent to the right to sue at common law. If the only defense to a cause is lack of demand, the defendant will be saved from the payment of costs by compliance with the statute, and at the same time the plaintiff will be saved from a nonsuit. [Bollman Bros. v. Peake, 96 Mo. App. 253.] It will not be said the statute was intended to *337permit a defendant to escape costs on the score that no demand was made, in actions wherein the common law required no previous demand. Speaking in terms of the present case, if it was not incumbent on plaintiff at common law to request payment of the sums of money defendant had agreed to transmit, before suing, the statute in .question is irrelevant. The brief for defendant treats the case as though moré was proved than in fact was, and takes for granted its own custom and that of other express companies, was to issue money orders somewhat in the nature of bank drafts and payable at sight or on demand, to persons who wished to pay money to another person at a distant point; that these transactions did not contemplate transmission of the money paid over to the company by the sender, but instead payment by the company out of any funds on presentment of the orders by the payees or their indorsees at the places designated. Likely this was defendant’s course of business; but there is no proof it was in the present record, and it is not a fact to be noticed judicially. Moreover, we question if evidence to prove it would be competent against the -terms of the writings executed by defendant. The contract was made by the money order and receipt, the two papers issued in each case; and according to those papers defendant agreed to transmit a sum of money and pay it to the order of plaintiff. Such is the language used in the “Express Money Order,” whereas the receipt says the sum paid to the company had been sent to Leslie A. Downs at Oronogo Junction by S. Y. Taylor. It appears from the contracts in suit and also from the admissions in the answer, defendant acted in the matter in controversy as a forwarder and common carrier. The answer admits it was a forwarder and common carrier, and as such undertook to transmit from Truesdale and pay to the order of plaintiff, the *338money in dispute. Hence both the duty and the liability of defendant grew out of its capacity of carrier. An express company is not only a common carrier, but is one required, in most cases, to deliver to the consignee the property it undertakes to transport; and generally it must do that or notify the consignee of the arrival of the property and afford him a reasonable time to call for it. [Hutchinson, Carriers (3 Ed.), secs. 716, 717, and cases cited in notes.] Independently of proof of usage to the contrary, and there is none in this record, it was the duty of defendant company to deliver to Downs the money it had agreed to transmit to him, when it arrived at Oronogo, or, at least, give him notice of its arrival and that defendant was ready to pay him; and he was not bound until he was notified. As defendant failed to observe its duty either to transmit the money, pay Downs the sums called for or even notify him it was ready to pay, his cause of action was complete when he began suit, and defendant could not escape liability for the interest and costs by a tender under the statute. Whatever was said to the contrary in the case of Rosenberger v. Pac. Express Co., 129 Mo. App. 105, is disapproved.

The judgment is affirmed.