| Mo. | Oct 15, 1865
delivered the opinion of the court.
The question in this case is whether the court erred in talcing the case from the jury, by instructing them that upon the evidence the plaintiff could not recover. Two points are raised by the bill of exceptions and brief: First — The plaintiff insists that the defendants accepted the bill sued on, and seeks to recover on their acceptance. Secondly — The plaintiff insists that there was an equitable assignment of the funds in the hands of the defendants belonging to the drawer of the bill. •
I. The evidence shows that the defendants agreed to pay the bill provided the plaintiff would procure certain receipts from Wernz, the drawer of the bill, who at that time lived in New Mexico, and these receipts were never procured. This conditional acceptance was written on a separate piece of paper and made no reference whatever to the bill in question. But there were other circumstances in the case that would enable the jury' to determine whether the conditional acceptance referred to this particular bill, and so far as that was concerned it might have been submitted to the jury. But there was no evidence showing, or tending to show, that the conditions of the acceptance were ever complied with by the holder of the bill; indeed, the plaintiff’s counsel admits that they never were. The holder of a bill is entitled to an absolute and unconditional acceptance according to the tenor of the bill, and he may reject any other. (Sto. on B., § 240.) But if he relies on a conditional acceptance, he must show affirmatively that the condition has been complied with.— (Id.) The drawee of a bill is under no legal obligations to the holder to accept, and he may impose any conditions on the acceptance that he sees proper, and the holder or payee may rely on the acceptance and comply with the conditions, or he may reject ■ it and have his bill protested for want of acceptance. In this case there was no evidence to show that the payee had ever complied with the conditions of the acceptance, and therefore there was no evidence upon which
II. Did the bill operate as an equitable assignment of the funds belonging to the drawer in the hands of the drawee ? The facts as proven show that on the 3d September, A. D. 1857, one Charles W. 'Wernz executed and delivered to Elias Brevort a certain written order, of which the following is a copy: [See statement, p. 52.]
The evidence also shows that at the same time Wernz executed the above order, he delivered to Brevort a statement of accounts rendered by defendants to Wernz, showing an indebtedness on the part of defendants to said Wernz in the sum of three hundred and eighty-seven 47-100ths dollars ; and that Wernz gave an order to Brevort, at the same time, to deliver to the plaintiff the money, draft, or check, which he might receive on said papers.
Upon this state of facts, it is contended that there was an assignment of the fund in the hands of defendants to the plaintiff. Under our statutes an account may be assigned in writing, and it is not absolutely necessary that the assignment should be upon the same piece of paper with the account; but the assignment ought to show with reasonable certainty a present intention on the part of the assignors to transfer the account, and a present willingness on the part of the assignee to accept the account; and where it is perfectly convenient for the parties to write the assignment on the account, it is certainly the easiest way to express the intention of the parties ; and it will at least throw some doubt upon the intention of the assignor, when the account is in the possession of the assignor at the time it is claimed that the assignment was made, and he fails to endorse the assignment on the account. If Wernz intended to assign the account
But, after all, the instrument sued on is a bill of exchange, and not a mere order to pay over a particular fund. (Sto. on B., § 3.) It is payable to Brevort, or order. It shows upon its face that it was intended to be negotiated, and it was negotiated, and it is only by virtue of its negotiable character that the plaintiff has acquired any title in it; and, we think, that after being refused acceptance it would not operate as an equitable assignment of the fund. In Kimball v. Donald, 20 Mo. 577" court="Mo." date_filed="1855-03-15" href="https://app.midpage.ai/document/kimball-v-donald-7999521?utm_source=webapp" opinion_id="7999521">20 Mo. 577, it was held by this court, that a bill drawn upon a particular fund mentioned in the bill could not have the effect of an equitable assignment, although the drawee had promised to pay any balance that might be in his hands. In this case if the bill was to have the effect of an equitable assignment, that equity must be in favor of the payee mentioned in the bill; but he treated it as a mere bill of exchange, and so did his assignees, McKnight & Co.
In Kimball v. Donald, Judge Leonard, adopting the language of Lord Chancellor Truro, in Hadock v. Gaudell, (15 Eng. L. & Eq. 30,) says: “An agreement between a debtor and. a creditor that the debt owing should be paid out of a specific fund coming to the debtor, or an order given by a debtor to his creditor upon a person owing money or holding
The case at bar falls within two of the exceptions named in Kimball v. Donald: 1. The proceeds of the draft were to pass to the plaintiff at a future time — that is, after Brevort had collected it from the defendants; and 2. Wernz retained control over the subject by giving the order to his own agent.
We think there was no evidence showing an assignment under the statute, or an equitable assignment of the fund in the hands of the drawee. There was no error in the court instructing the jury that there was no evidence upon which the plaintiff could recover.
Judgment affirmed.