4 Mo. App. 200 | Mo. Ct. App. | 1877
delivered the opinion of the court.
This is a suit upon a draft, brought originally against the respondent and the members of the firm of Levi L. Ash-brook & Co., but which has been dismissed as to the latter. The petition alleges that the respondent drew a bill of exchange at St. Joseph, Missouri, dated December 11, 1875, directed to Ashbrook & Co., by which it requested them to pay, ninety days after said date, to the order of Joseph C. Hull, cashier of a St. Joseph bank, $40,000, for value received, and to charge the same to respondent’s account; that before the maturity of the bill it was delivered to Ash-brook & Co. by the respondent and by said Hull, cashier, with the request and authority by them respectively given to Ashbrook & Co. that the latter should accept the bill and negotiate and procure the same to be discounted, and
At the trial a jury was waived, and oral evidence was-introduced by the appellant, much of which was admitted against the objection of the respondent, tending to show that there had been business transactions between the respondent and Ashbrook & Co., which had left the latter in debt to the former to more than the amount of the bill that in December, 1875, one Peake, an agent of Ashbrook & Co., visited the respondent, at St. Joseph, and stated to-it that Ashbrook & Co., to facilitate settling the business, wished to have the respondent draw on them at sixty or ninety days, and would pay the excess of the debt in cash ; that the proposal made by this agent was that the respondent should draw a draft on Ashbrook & Co. for $40,000, at ninety days; that Ashbrook & Co. were' to have the draft discounted, pay the discount, and place the $40,000 entire to respondent’s credit; that respondent’s secretary, Joseph C. Hull, accordingly said he would make the draft, to be discounted and placed to the respondent’s credit; that the draft so drawn is the bill in suit, and was delivered to this
L. L. Ashbrook testified that he drew the lines through the endorsement, at the appellant’s bank, after it had been passed on by the discount board and before the draft was entered on his bank-book; that some remark was made by
The respondent put in -evidence letters from Peake and Ashbrook & Co., of dates respectively December 7th and 18th, to the secretary of the respondent, in regard to in
The appellant’s instructions were refused. They need not be set forth, as the following instructions, given by the court at the request of the' respondent, present the contrary applications of law in bolder and sharper outline, and with less interruption by unessential facts :
“1. The Valley Packing Company moves the court to decide the law to be that, if the court finds from the evidence that said Joseph C. Hull, cashier of the First National Bank of St. Joseph, to whom said bill was payable, endorsed the same to James T. Howenstein, cashier of the Valley National Bank of St. Louis, for collection for account of the First National Bank of St. Joseph, and afterwards the same was accepted by said Ashbrook & Co., who caused the same to’ be discounted by the plaintiff, the effect of said endorsement to said Howenstein was to restrict the negotiation of said bill, and prevent the plaintiff or any other person from acquiring a title thereto as against the Valley Packing Company, for whom the same was held by said Hull, as cashier of said First National Bank, as appears by plaintiff’s petition, and the jury must find for the defendant, said Valley Packing Company.
“ 2. The Valley Packing Company moves the court, sitting as a jury, to decide the law to be that if the court finds from the evidence that, at and before the drawing of' the bill in suit, Levi Ashbrook & Co. were indebted to the-Valley Packing Company in a greater sum than $40,000; that said bill was drawn on said Ashbrook & Co. on account of said indebtedness, in favor of Joseph C. Hull, cashier of the First National Bank of St. Joseph; that said National Bank of St. Joseph paid nothing for said bill, but held the same for the use of the said Valley Packing Company; that*208 said Hull, before the acceptance thereof, endorsed said bill to James T. Howenstein, cashier of the Valley National Bank of St. Louis, and said Ashbrook & Co. afterwards caused said bill to be discounted by the plaintiff, the effect thereof is that the title to said bill never passed away from said Valley Packing Company, and the plaintiff acquired no title thereto as against the said Valley Packing Company, and the plaintiff cannot recover in this action.
“3.- The Valley Packing Company moves the court, sitting as a jury, to decide the law to be that if the .court finds from the evidence that, at the time or prior to the drawing and endorsing of said bill in suit, certain conversations and negotiations were had between Samuel H. Peake, representing Levi Ashbrook & Co., and Joseph C. Hull, representing the Valley Packing Company, as to what the shape of said bill should be, or as to what the endorsement thereon should be ; and that, notwithstanding such conversations and negotiations, said bill was finally drawn and endorsed as it now appears, except the striking out of said endorsement of Joseph C. Hull thereon, by drawing lines through and over said endorsement, such conversations and negotiations can have no effect whatever to change or modify said bill or endorsement, nor to make it negotiable, nor confer any authority on said Ashbrook & Co., or any one of them, to discount said bill, or to strike out said endorsement therefrom, nor pass the title of said bill to the plaintiff, or any person, as against the Valley Packing Company.
“4. The Valley Packing Company moves the court, sitting as a jury, to decide the law to be that if the court finds that, at and prior to the drawing and endorsing of said bill, said Levi Ashbrook & Co. were indebted to the Valley Packing Company in a greater sum than $40,000, and said bill was drawn on account of said indebtedness, payable to Joseph C. Hull, cashier of the First National Bank of St. Joseph; "that neither said Hull or said First National Bank gave any consideration therefor, or had any interest therein, but held the same for the use of the Valley Packing Com*209 pany, and said Hull endorsed said bill to James T. Howen-stein, cashier of the Valley National Bank of St. Louis, for collection, for account of said First National Bank of St. Joseph; and if the court further find that said Joseph C. Hull, after endorsing said bill as aforesaid, did consent that Ashbrook & Co. should cause said bill to be discounted with said endorsement upon it, such use of the bill would confer no right thereto against any other party on the bill save Levi Ashbrook & Co., and such use of the bill will not entitle the plaintiff to recover in this action.
“5. The Valley Packing Company moves the court, sitting as a jury, to decide the law to be that if the court shall find from the evidence that Joseph C. Hull, cashier of the First National Bank of St. Joseph, to whose order the bill in suit was payable, endorsed said bill, on or about the 11th day of December, 1875, to James T. Howenstein, cashier of the Valley National Bank of St. Louis, for collection for account of the First National Bank of St. Joseph, and that after-wards the said endorsement was erased from said bill, by drawing lines through the same, by the act of Levi L. Ash-brook, one of the firm of Levi Ashbrook & Co., parties on said bill, and that said erasure was made without the consent of said Valley Packing Company, the effect thereof is to make null and void the said bill as to the Valley Packing Company, and the plaintiff cannot recover against ®said Valley Packing Company.”
The court found for the respondent, and the case is here by appeal.
The general position of the appellant in regard to his right to recover appears to be this: that the court should go behind the form of the action, and declare the rights of the parties according to the underlying facts. This is an action on a bill of exchange, and, since the suit has been dismissed as to Ashbrook & Co., the acceptors, is an action against the drawer, who, after acceptance, stands as an endorser, to be held only by a holder who is entitled to give
The present is not a case of a general endorsement, or an endorsement in blank, and the reasoning drawn from such cases is without application. As the presumption is against restrictive endorsements, as restraining the negotiability of paper otherwise negotiable, so, where such endorsements clearly appear, their legal intent must be carried out according to the words of the writing. Here was not only an endorsement for collection, but an endorsement for collection on account of the payee. The bill on its face earned with it a trust, into whatever hands it went. Wilson v. Holmes, 5 Mass. 543; Lloyd v. Sigourney, 5 Bing. 525; Sigourney v. Lloyd, 8 Barn. & Cress. 622; Murrow v. Stuart, 8 Moo. P. C. 267; Leary v. Blanchard, 48 Me. 269; 1 Dan. Neg. Inst., sec. 698. The meaning of the words “for collection,” in an endorsement, is now well settled. “That meaning,” said Mr. Justice Miller, in Sweeney v. Easter, 1 Wall. 173, “ was intended to limit the effect which would have been given to the endorsement without them, and warned the party that, contrary to the purpose of a geueral or blank endorsement, this was not intended to transfer the ownership of the note or its proceeds.” * * * “The endorsement in the present case was not intended to give currency or circulation to the paper. Its effect was just the reverse. It prevented the further circulation of the paper, and its effect was limited to an authority to collect it.” Prom the evidence in the case at bar the inference is plain
Stripped of extraneous matters, the facts, as shown by the evidence which the appellant contends is competent, are that Ashbrook & Co. owed the respondent over $40,000, and, being unable to pay it in cash, requested their creditor to draw on them for the amount at ninety days, the bill to be accepted by Ashbrook & Co., who undertook to procure the discount, and to pay the proceeds in discharge of their indebtedness into the Yalley National Bank, for account of the St. Joseph bank, the latter acting without interest in the transaction, merely as the banker of the respondent. This agreement was pursued by the restrictive endorsement, as shown by the acts of Peake and Ashbrook & Co., who, when they received the bill, failed to dissent from the contract written upon it, or to return the bill. Upon finding that the Yalley National Bank would not step beyond its authority, Ashbrook & Co. still made no complaint to the respondent that the agreement had not been carried out. Even when the appellant objected to the special endorsement, the bill was not withdrawn and sent back, but was taken by the appellant, apparently upon the faith of the acceptance, and in the expectation that additional security would be furnished by Ashbrook & Co.
Be this as it may, the bill, on its face, was a sufficient notification to the appellant that it was'Ashbrook & Co.,
The erasure, made by the common consent of Ashbrook <& Co. and the appellant, evinced their determination to make a new contract of their own. The respondent had plainly signified, by the endorsement of its agent and banker, what its contract was, and upon what terms it was willing to let its name go forth upon the bill. Those terms, proposed on the bill itself, were not accepted ; and to any new terms there is no evidence that the respondent assented. The effect of the alteration of the bill, without the assent of the respondent, was to destroy the validity of the bill as to the respondent. Haskell v. Champion, 30 Mo. 136; Ivory v. Michael, 33 Mo. 398; Evans v. Foreman, 60 Mo. 449; German Bank v. Dunn, 62 Mo. 79. And this the appellant was bound to know when it took the bill, which, within its knowledge, had been altered in a material matter.
The appellant insists that there was a trust conferred upon Ashbrook & Co., by the respondent, to raise the money on the bill, and to use the respondent’s name for that purpose ; that the money was so raised; and that, consequently, the respondent is liable. But, even allowing the writing to be contradicted by parol evidence, there is no testimony which shows that respondent entrusted its name to be used by Ashbrook & Co. Peake does not say so; and all the facts tend to prove the contrary. The trust is a deduction of counsel, not warranted by evidence. When Peake, and afterwards Ashbrook & Co., received the bill with the restrictive endorsement, neither dissented. If the understanding was that the respondent’s name was to be used on the bill to procure the discount, this was a vital fact. As the endorsement expressly prohibited such use, surely the draft would at once have been returned with the complaint
The judgment of the court below is affirmed.