106 Mo. App. 1 | Mo. Ct. App. | 1904
The case here is about this':- The plaintiff drew his check on a New York bank in favor of W. M. Boles for $390 which with a blank receipt to be signed by the payee in the cheek he inclosed in a letter to defendant. In this letter the plaintiff told the defendant that, “my correspondence in this matter has been with O. C. Sharp representing Mr. Boles. Please deliver my draft (check) to Mr. Boles or to Mr. Sharp on his order upon Mr. Boles signing the receipt inclosed. Any charges you may make are to be paid by Mr. Boles. ” The defendant acknowledged the receipt of the’ check and stated that as soon-as Mr. Boles came in it would have him sign the receipt and return to plaintiff. Later on, the defendant inclosed to plaintiff the receipt signed by W. M. Boles.
It appears that in 1888 the plaintiff and W. M. Boles, who seem to have been lawyers and claim agents, were jointly interested in prosecuting before the court of claims at Washington an ‘ ‘ Indian depredation claim. ’ ’ The plaintiff resided at Washington and Boles at Webb City, and afterwards at different places in Kansas, Texas and Arkansas. It seems that' in 1898 the depredation claim was allowed and paid and the plaintiff on August 31, 1898, wrote a letter to Boles at Webb City, in this State, informing him of the fact and further that
Plaintiff replied answering the several queries as requested and saying that he would give him one-fourth of the fee referred to. On receipt of this Sharp wrote plaintiff that, “after conference with Mr. Boles I will say please send me draft for $390, together with such voucher as you deem proper and I will execute and return to you. . . . Make draft payable to my order so that I can protect myself in a small fee, etc. . . . Should you prefer, you may send the $390 draft to the Exchange Bank here instead of direct to me. ’ ’ On receipt of this, the plaintiff wrote to Sharp that he had sent the draft to the Exchange Bank, as requested, and a “receipt in full to he signed by Mr. Boles. Kindly have the receipt signed and the hank will deliver the draft to Mr. Boles, or to you on his order. The defendant sent the check to its New York correspondent for collection' to-whom it was paid. "When defendant was advised of the payment of the check it inclosed Boles’ receipt to the plaintiff, and on the order of "W. M. Boles it paid the amount of the check so collected to Sharp.
The plaintiff made some settlement with the true W. H. Boles of the fee matter and then brought this action against the defendant, alleging in the petition, amongst other things, that the said draft was never delivered to W. H. Boles by defendant and that by reason of the negligence and carelessness of defendant in fail
The plaintiff in his letter to defendant and inclosing the check and requesting it be delivered to Mr. Boles or to Mr. Sharp on his order, expressly stated that, “any charges you may make in this matter are to be paid by Mr. Boles and not by me,” so that it is clear that the defendant was as to plaintiff not a bailee for hire but a gratuitous bailee. The- defendant accepted the trust with the express understanding that the duties it imposed were to be performed by it as a mere gratuity so far as the planitiff was concerned. In Shields v. Blackburn, 1 H. Black 158, it was said that, when a bailee undertakes to perform a gratuitous act, from which the bailor alone is to receive the benefit, the bailee is only liable for gross negligence, but if a man gratuitously undertakes to do a thing to the test of his skill when his situation or profession is such as to imply skill, an omission of that skill is imputed to him as gross negligence. And this view of the law is adopted by. Mr. Story who states that at common law when the contract is wholly gratuitous and for the benefit of the mandator, the mandatory is bound only to slight diligence and is only responsible for gross neglect, citing as adopting this rule Tompkins v. Saltmarsh, 14 S. & R. 275; Beardsley v. Richardson, 11 Wend. 25; Foster v. Essex Bank, 17 Mass. 497. This rule has been adopted in this
Sharp requested the plaintiff to send the check to the defendant bank. The plaintiff complied with this request and so notified Sharp. Under 'the letter inclosing the check the duty of the defendant was plain and simple. It was only required to, deliver the check to “Mr. Boles or to Mr. Sharp on his order upon Mr. Boles signing the receipt inclosed.” After Sharp had been notified that the check had been sent to the bank he, in company with a man whom he represented to the defendant to be W. IT. Boles, the payee in the check, called at defendant’s bank and asked for and was shown the check and receipt and thereupon Boles offered to and was permitted to indorse the check and sign the receipt by making his mark, the cashier Stewart and Sharp writing their names as attesting witnesses thereto.
There was no doubt that O. C. Sharp, who introduced Boles, was the same person mentioned in the letter of plaintiff to defendant inclosing the check. The defendant was told in that letter that Sharp represented Boles. Defendant’s cashier was personally acquainted with Sharp and when he represented that the man accompanying him was his client Boles, the payee in the check, it was but natural and reasonable that the defendant’s cashier should, under the circumstances, without question accept as true such representations. There was nothing in the reputation of Sharp which was known to defendant’s cashier, or in the nature of the transaction, as far as was disclosed' by the correspondence, which was in the least calculated to excite the suspicions ©f defendant’s cashier as an ordinarily prudent business man. He had every reason to believe that
The letter of Sharp to plaintiff in which he made the numerous inquiries respecting the “Indian depredation claim,” the fee, etc., was of such a character as it seems to us ought to have aroused the suspicions of the plaintiff as to whether the Boles for whom Sharp wrote was his associate in the prosecution of the depredation claim and with whom he had been carrying on a correspondence extending through many years. This letter showed very clearly that the'Boles for whom Sharp wrote was in utter and total ignorance of the ‘ ‘ depredation claim” and the fee to be received therefor. It is inconceivable that the Sharp letter did not excite doubt and suspicion in the mind of plaintiff as to whether the Boles for whom the letter pretended to have been written was not an imposter. Such doubts and suspicions would, it seems to us, have arisen in the mind of any but the most stupid and heedless. No man or ordinary caution and prudence after the receipt of such a letter, and under all the facts and circumstances as known to plaintiff, would have sent the check to the defendant bank to be delivered to the Boles represented by Sharp without writing, as he did after the commission of the fraud, to the defendant that the Boles for whom the check was intended was William M. Boles who resided in Webb City in 1892 and 1893 and was in business as a real estate agent, and requesting that before delivering the check defendant should ascertain whether or not the Boles Sharp was representing was the Boles who so lived
But aside from any carelessness of the plaintiff, we can discover nothing in the facts which the evidence conduced to prove that would justify a finding that the defendant was guilty of any kind of negligence in the discharge of its duties and functions as bailee for which it should be held liable.
And we think it is immaterial upon what theory the court proceeded in the consideration of the case; and as to whether the court refused to consider the ease upon any one of the theories embodied in the declarations of law requested by the plaintiff is equally immaterial, since we can not discover that the plaintiff was entitled to recover on any possible theory authorized by the evidence.
It follows from this that the judgment must be affirmed.