72 Mo. App. 437 | Mo. Ct. App. | 1897
This is a suit in replevin for three cars of wheat aud is of several years’ standing. It was begun in September, 1890,. resulting in a judgment in the circuit court in defendant’s favor; thence appealed to this court, where the judgment of the circuit court was affirmed (52 Mo. App. 407); then transferred to the supreme court because of a supposed conflict of decision between this court and the St. Louis court of appeals; the supreme court heard the case (126 Mo. 344) and reversed the judgment of the circuit court, where another trial was had with a judgment for' plaintiff, and defendant has prosecuted this last appeal.
While a general understanding of the controversy may be had by consulting these former reported decisions, we deem it necessary to state here the principal facts as we find them fairly set out in the brief of plaintiff’s council:
The Imboden company, on receipt of the title papers, surrendered to the Missouri Pacific Railway Company the bill of lading it had received from the plaintiff, and obtained in lieu thereof a bill of lading whereby the three ears were consigned to the order of Imboden Commission Company, notify C. H. Albers, St. Louis. The Imboden company then drew a draft upon C. H. Albers, of St. Louis, and attached the bill of lading, duly indorsed, to the draft, and deposited the draft with the Central Bank, to be forwarded to St. Louis and there collected from C. H. Albers. In the afternoon of September 1, the plaintiff became advised that a cheek, given by the Imboden Commission Company on the preceding day, had been thrown out by the Central Bank, and the plaintiff’s president, in company with Imboden, immediately went to the Central Bank and there demanded of its officers either the payment of the check for $1,374.82, which was then presented, or the return to it of the three cars of wheat, on the ground that it was a cash sale and cash had
The Central Bank forwarded the draft, with bill of lading'attached, to the National Bank of the Republic, at St. Louis, for collection against Albers, and the draft was duly presented to Mr. Albers on the morning of September 2. Mr. Albers refused to pay the draft, on the ground that he had received a telegram from the Imboden company, the drawer of the draft, directing that it be not paid. The Central Bank was notified of Mr. Albers’ refusal to pay the draft, and on the morning of the third of September, Mr. Thayer, the cashier of the Central Bank, arrived in St. Louis and at once saw Mr. Albers, who again declined'to pay the draft, on the same ground. Mr. Thayer then had some negotiations with Mr. Albers which resulted in Mr. Thayer guaranteeing in behalf of his bank that Albers would receive the grain on the bill of lading. Upon the strength of this guaranty Albers paid the draft on the third of September.
The Missouri Pacific Railway Company had been served with a notice of garnishment in respect to these three cars; so that on September 9, the date of the institution of this suit, the cars were still in the yards of
The Imboden Commission Company had been doing a commission business in Kansas City for some time, and not being provided with a working capital, had made a special arrangement with the Central Bank for the purpose of enabling it to handle its orders. By the terms of that arrangement the Imboden Commission Company were authorized by the bank to draw checks upon the bank to pay for grain to fill the commission company’s orders. To meet this check when it should be presented, the commission company was required to draw at once upon its customer for the purchase price of the grain and deposit the draft, with bill of lading attached, in the 'bank. This draft was accepted by the bank as cash for the purpose of paying the check given by the Imboden company for the purchase price of the grain. For the purpose of identifying the cheek to which the proceeds of any one draft was to be applied, the check ordinarily (and in this instance) had, written upon its back, the car numbers shown in the bill of lading attached- to said draft.
The fact of this agreement appeared without contradiction and is one of the conceded facts in the case.
There can be no question, under the conceded facts of this case, that plaintiff had the legal right to re-take the property from either Imboden or from the Central Bank. A failure to pay the purchase price on delivery, as agreed, rendered the sale nugatory on the election of the vendor. The purchase price was not so paid; Imboden conceded plaintiff’s right to resume possession of the property, and at once went with the latter to the Central Bank and demanded a return of the property to the plaintiff. The Central Bank was all the time fully acquainted with the facts attending the sale, knew when it took the bill of lading and accompanying draft that the wheat was purchased for cash on delivery, and that no cash had been paid. The bank was not then an innocent holder for value, and occupied no better attitude for claiming the wheat than did Imboden. On the same evidence this was the holding of the supreme court in a companion case. Johnson-Brinkman Co. v. Central Bank, 116 Mo. loc. cit. 573, 574.
In our opinion this was a correct declaration of law. It seems, however, that the court might very properly have given a peremptory instruction for the plaintiff, since it must be conceded that such a telegram was sent to Albers, and that it was received by him on the same day; but that in violation of such direction, Albers paid said draft and took the bill of lading. That the drawer of a cheek or draft has the right to countermand the same before being presented and accepted or paid by the drawee, is well settled. Albers v. Bank, 85 Mo. 176; Bank v. Bank, 58 Mo. App. 17, and authorities cited by plaintiff’s counsel. And when so countermanded, such draft, as some of the judges say, becomes a mere “piece of waste paper.” Since then Albers’ pretended good faith purchase comes from his payment of the draft accompanying the consignment of the wheat, it would seem clear that, as this payment was made in the face of the revocation of the draft by the drawer and positive instructions to the drawee not to honor the same, said Albers could base no lawful right thereon. He can not in this way base a right on the commission of his wrongful act. His payment of the draft was merely voluntary and opposed
Judgment affirmed.