71 Mo. App. 132 | Mo. Ct. App. | 1897
Lead Opinion
Plaintiff is engaged in the wholesale-grocery business in St. Louis. One of its customers was J. B. Smith, a retail grocer at Mt. Vernon, Missouri. The latter purchased goods of plaintiff through one Hampton, a traveling salesman, between July, 1895, and February, 1896. The president of the plaintiff corporation informed said Smith that it would be. proper for the latter to give his checks, payable to-plaintiff’s order, in settlement for purchases and deliver-
action against the latter. Dowell v. Bank, 62 Mo. App.
“We can not recognize the argument that a payment of the amount of a check or sight draft under such circumstances amounts to an acceptance, creating a privity of contract with the real owner. It is difficult to construe a payment as an acceptance under any circumstances. The two things are- essentially different. One is a promise to perform an act, the other an actual ■performance.”
The logic of this view is sustained by an analysis of the legal relationship of' the payee and the drawee in the cheeks. • Suppose these had been presented to .‘defendant with the genuine indorsements of the payee, defendant would have been at perfect liberty to refuse, their payment, for the obvious reason that before acceptance no contract existed between it and the holder of the checks operating as an assignment of that portion of the funds of the drawer called for by the checks, nor would any right of action have arisen under such circumstances in favor of the payee or his indorsee against the drawee. This being so it is apparent, unless something has happened to establish a contract between the plaintiff and defendant, or which operated as an assignment by defendant in plaintiff’s favor of the money of the drawer of the checks, there can be no recovery in the present action. It is not pretended that plaintiff had any express contract with defendant in reference to the payment of said checks; nor that plaintiff had any dealings with defendant which involved a recognition by defendant of plaintiff’s right to the portion of the deposits of the drawer represented by the checks. The only method by which appellant seeks to show a right in plaintiff to sue the defendant bank, is by the transactions between it and the agent of a stranger to the checks, who so far from represent
The true view of the matter is, that the plaintiff can only avoid the defense of want of privity of contract by showing something in the dealings between itself and defendant which amounts to an acceptance of the checks or an assignment of so much of the drawer’s funds as is represented by them. Thompson v. Bank, 82 N. Y. 1. Neither of these can be shown by the acts and doings between defendant and the forger of plaintiff’s indorsements on the checks. While the transactions between defendant and this wrongdoer could not afford plaintiff any rights against defendant growing out of privity of contract, it does not follow that defendant is to go scot-free. Defendant as the drawee of the checks in question could only charge his depositor, the drawer, with money paid, either to the real payee, or upon his genuine indorsement. For the rule is elementary, that as
Our conclusion is that plaintiff’s petition states no cause of action against defendant, and that the judgment of the trial court must be affirmed.
Rehearing
OPINION ON MOT.ION NOR REHEARING.
We are asked to transfer this case to
the supreme court on the ground that our decision is opposed to that of the Kansas City court of appeals in the case of Ripley National Bank v. Latimer, 64 Mo. App. 321. The learned judge who delivered the opinion in that case said: ‘ ‘If the bank holding a deposit subject to the payment of a check on its presentation wrongfully refuses payment, the holder of the check has a right to sue the bank in an action of assumpsit upon the implied promise which the law raises in behalf of the holder of the check.” To sustain this the opinion cites the cases of Zelle v. Savings Inst., 4 Mo. App. 401; McGrade v. Savings Inst., 4 Mo. App. 330; Sutter v. Bank, 7 Mo. App. 532; Lewis v. Bank 13 Mo. App. 204; Savings Ass’n v. Bank, 11 Mo. App. 292. The doctrine of the foregoing cases was expressly overruled by the supreme court in Dickinson v. Coates, 79 Mo. 250. It was there decided that a bank check drawn for a part only of the drawer’s deposit, does not operate either at law or in equity as an assignment of the deposit pro tanto or confer any lien upon it. As it appeared in the case of Ripley v. Latimer, supra, that the drawer of the check had no funds in the bank at the time the check was presented, the foregoing extracts from the opinion may rightfully be regarded as dicta. The motion to transfer will be overruled.