Payne v. Clark & Bros.

19 Mo. 152 | Mo. | 1853

Ryland, Judge,

delivered the opinion of the court.

The plaintiff’s petition states that he deposited in the banking house of Clark & Bros., the sum of $1414 ; $404 of this sum being in currency, and the balance, $1010, in cash; and that, at the time of making the deposit, the defendants executed and delivered to him a certificate of deposit, as follows :

“Banking House of E. W. Clark & Bros.

“ No. 760. “ St. Louis, Mo., 26th Eeb’y, 1851.

“ L. P. Payne has deposited in this office, one thousand and fourteen dollars, (in funds as below,) payable to order of himself on return of this certificate, sixty days after date, with interest at the rate of six per cent, per annum.

“£1014. “Currency, ... £404

“ Cash, - - - 1010

£1414

“ E. W. Clark & Bros.”

The petition alleges that the defendants, by mistake, inserted £1014, where they ought to have inserted £1414 in the body of said certificate. He states that, after the expiration of two months, he presented said certificate of deposit for payment and it was refused.

The defendants deny, in their answer, that plaintiff ever deposited £1414 with them, but admit the deposit of £1014. They admit that the certificate of deposit set forth in the petition was executed by them, and allege that the £1010 opposite the word “cash,” was a mistake and ought to have been £610, which was the true and correct sum, and that the sum of £1014 was the true and real amount deposited ; and that they offered to pay that sum to plaintiff, and were always ready to pay that sum.

On the trial, the plaintiff read the certificate of deposit and then rested his case.

The defendants then asked the following instruction : “ The jury are instructed that, upon the case as made, the plaintiff is not entitled to recover which instruction was given. The plaintiff thereupon suffered a nonsuit, which he afterwards moved to set aside, and failing in his^ motion, he brings the case here by appeal.

1. The plaintiff complains of the instruction given to the jury. In the opinion of this court, the instruction was proper. The plaintiff declared on a certificate of deposit for $1414; he alleges that he deposited that amount with the defendants. To support his petition, he presents the certificate above set forth, which cannot be said to be a certificate for $1414, but is a certificate for $1014. He failed entirely to prove the allegation as to the certificate and amount declared on, and it was right for the court to say, from the case made by plaintiff himself, he could not recover.

This view of the case depends upon the certificate of deposit being only for $1014, and not for $1414. Let us see what the authorities are upon this subject.

The sum of one thousand and fourteen, (in funds as below,) dollars, is written on the face of the certificate in words. On the left hand of the certificate is the mark, $1014. Above the name of Clark & Bros, is the memorandum :

“ Currency, ------ $404

“ Cash,......1010

“ $1414”

The defendants contend that this is a certificate calling only for $1014. The plaintiff contends that.it calls for $1414, and that the memorandum “ in funds as below,” with the currency, $404 and cash, $1010, controls the other words and makes it for $1414. Chitty on bills, 149, says : “there is no absolute necessity for the superscription of the sum for which the bill is payable, provided it be mentioned in the body of the bill; but the superscription will aid an omission in the body, and it is now the usual mode to superscribe the sum payable in figures at the head of the instrument, and in words in the body of it. If there be a discrepancy between the sum in the body of the bill and the superscription, the former will prevail. ” Again, at page 160, of the same treatise; “if the sum in the superscription of the bill be different from that in the body of it, the sum mentioned in the body will be taken as the sum to be paid prima facie. ”

Story on bills is to tbe same point. He says : “ tbe sum is sometimes expressed in figures in the superscription, as well as in tbe body of the instrument in letters, for greater caution. But if tbe sum in figures, on tbe superscription, differs from tbe sum in words in tbe body of tbe instrument, tbe latter will be deemed tbe true sum; and parol evidence is inadmissible to establish that the sum intended was not that stated iu words in the body of tbe instrument, but was that stated in tbe margin in figures.” In tbe case of tbe Norwich Bank v. Hyde, 13 Conn. Rep. 282, Williams, C. J., in delivering tbe opinion of tbe court says : “ Tbe aid, then, tbe margin is to give, is to remove an ambiguity in tbe body of tbe instrument, or to clear up a doubt, not to supply a blank. Tbe body of tbe instrument must be our guide.” He referred to Elliofs case, in Leach C. L. 185. There tbe note, in tbe body of it, was for fifty-, in tbe margin £50. Tbe margin helped out tbe body; it was able to remove tbe ambiguity. Yet, in this case of jElliofs, tbe judges would not decide,even with tbe aid of tbe margin, that, as a matter of law, tbe note was for £50, but that was properly left to tbe jury. There is a class of cases where memoranda are made upon notes and bills, and a question has arisen bow far these memoranda become part of tbe instrument, such as tbe following on a note: “payable at Messrs. B. & Co., bankers, London.” It was held that this did not make part of tbe contract. 10 Barn. & Cress. 2. Where tbe evidence declared against tbe maker of a promissory note, that be made tbe same payable at the bouse of Messrs. B. & Co., London, and, upon production of tbe note at tbe trial, it appeared that tbe address at tbe bouse of Messrs. B. & Co. was not a part of tbe note, but only a memorandum at tbe foot of tbe note, it was held that this was a variance. Exon v. Russell, 4 Maule & Sel. 505.

In Saunderson et al. v. Piper et al., 5 Bing. Rep. (new cases,) 425, a bill of exchange was expressed in figures to be drawn for £245, in words for £200, value received, with a stamp applicable to the higher amount: held, that the evidence, to show that the words “ and forty-jive” had been omitted by mistake, was not admissible. Tindall, O. J., said: “The evidence in question being inadmissible, we cannot shake the rule of commercial writers that, where*a difference appears between the figures and the words of the bill, it is safer to attend to the words. If we take the authority of these writers, where we have none of our own, this is a good bill for the sum Expressed in the body.”

Bosanquet, J., said : “ The argument that pressed me the most is the rule of fortius contra proferentem ; that an instrument must be taken most strongly against the party making it. But there is no case in which that principle has been applied to an instrument, the body of which expressed a clear amount, and the ambiguity arises from a different amount expressed in the margin. Under such circumstances, the rule of law, as to evidence, must prevail,

Erskine, J., said : “I am of opinion, that] the words in the body must be taken as containing the amount of the bill to be paid; for, according to the authorities, figures are not of the same authority as words in the body of a bill, except in cases where the margin does not contradict, but is only an index to the body, as in the case of Rex v. Elliot, above cited.

Marius lays it down : “ If it so fall out that, through unadvisedness or error of the pen, the figures of the sum and the words at length of the sum that is to be paid upon any bill of exchange, do not agree together, either that the figures do mention more and the words less, or that the figures do specify less and the words at length more, in either or in any such like case, you ought to observe and follow the .order of the words mentioned at length and not in figures, until further order be had concerning the same, because a man is more apt to commit an error with his pen, in writing a figure, than he is in writing a word; and also, because the figures at the top of the bill do only, as it were, serve as the contents of the bill, and a breviat thereof, but the words at length are in the body of the bill of exchange, and are the chief and principal substance thereof, whereunto special regard ought to be had.”

Applying the rules o£ decisions in cases of bills of exchange to this certificate of deposit, and it is only obligatory for $1014. It promises to pay this sum, and this must control the specification of funds at the bottom. The sum in the margin is for $1014. The sum in words, in the body of the certificate, is the same, and it will be contrary to the rules and authorities of courts of high character, in England and in the United States, to let the memorandum, specifying the funds in which the deposit was made, and the amount thereof in figures, control the body of the instrument and the margin of the in* strument too. The judgment of the court below is affirmed,

with the concurrence of the other judges.