44 Mo. 554 | Mo. | 1869
delivered the opinion of the court.
It appears from the record that on the 9th day of June, 1857, Wm. Salisbury, plaintiff’s assignor, purchased from defendants, who were bankers doing business in St. Louis, a bill of exchange on New York for $3,200. The bill was payable at sight, and directed to Beebe & Co., defendants’ correspondents in the latter city. On the 24th day of August, 1857, the house of Beebe & Co. became bankrupt, and stopped payment, having in their hands a large amount of funds belonging to defendants ; and it is admitted by the facts in the case, that from the time the bill was drawn up to the time of the failure of Beebe & Co., they had in their hands funds belonging to the defendants in amonnt greatly in excess of the bill. The bill was never presented for payment, and in October of the same year Salisbury presented the same to the defendants and demanded that they should pay the money thereon.
The petition avers that it was agreed and understood at the time the bill was purchased that if Salisbury, who was going to Ohio on business, should not need the money, the defendants
The answer contains an express denial of the allegations in the petition. The evidence is conflicting ; and, under the instructions of the court, the jury found for the plaintiff.
It is not my province to comment on the evidence; but the law, as laid down by the court in its instruction, must be examined to see whether there Avas any misdirection. The first instruction given for the plaintiff tells the jury that if they believe from the evidence that at the time the draft Avas bought there was an understanding or agreement between Wm. Salisbury and either of the defendants that said Salisbury might do as he pleased about using or presenting the draft, and that if ho did not want to use it, he might return it to the defendants, and they Avould pay it, deducting exchange or expenses, then defendants are liable, though said draft Avas not presented to Beebe & Co., if the draft Avas returned within a reasonable time to defendants. The general rule in regard to presentment is that the bill must be presented within a reasonable time; and Avhat ayüI be a reasonable time must depend upon all the circumstances of each particular case. (Story on Bills, § 231, and cases cited.)
Where a bill is payable at sight, or a certain number of days after sight, if the holder keeps it in his oAvn possession for an unreasonable time, and thus locks it up from circulation, he makes the bill his own, and will have no remedy against any of the other antecedent parties upon the bill, from or through Ayhom he derived his title. (Story on Bills.)
In the case of Linville et al. v. Welch, 29 Mo. 203, Ellis & Sturgis, bankers in Cincinnati, drew a bill of exchange in favor of Welch, upon the banking house of Loker, Renick & Co., St. Louis. The bill Avas dated October 24, 1854, and afterwards indorsed by Welch to Linville. From the notary’s entry on the face of the bill- a,nd the protest, it appeared that the bill or draft was protested for non-payment on the 13th of December, 1854. On the day of the protest the notary sent notice of protest to the
Although the case just cited and the one at bar are not entirely parallel or analogous, yet the former furnishes an aid as indicating how far courts will go in deciding upon the question of reasonable time. The court there held that a delay of less than seven weeks was unreasonable, and discharged the indorser. Here there was a delay of four months- There the bill was indorsed and put in circulation; here it was kept in possession and locked up. Eor upwards of two months after it was issued the drawees were perfectly solvent, and it would have been cashed on presentation ; then they went down temporarily, dragging the drawers with them.
The second instruction given the jury at the request of the plaintiff is as follows: “If the jury believe from the evidence that on or about the 16th of October, 1857, Wm. Salisbury returned the draft and called upon defendants to take it up, and that either of the defendants, knowing at the time that the draft had not been presented to Beebe & Co., and that Beebe & Co. had failed, promised said Wm. Salisbury, or Thos. L. Salisbury, after he became the OAvner of the draft, that they would pay the draft, then plaintiff is entitled to recover, though said draft never was presented to Beebe & Co.”
In the English courts there has been great fluctuation and uncertainty on this subject, but the principle seems to be well
Where, in a case in the Circuit Court, the judge charged the jury that if, “after the maturity of the note, the defendant promised the plaintiff or his agent to pay the same, having at the time of making said promise knowledge of the fact that the note had not been presented for payment, and that no demand had been made therefor, or notice of non-payment given, the defendant can not now set up, as a defense to said note, a want of such demand or notice,” the Supreme Court of the United States held the charge correct. (Sigerson v. Matthews, 20 How. 464; see also Thornton v. Wynn, 12 Wheat. 183.)
In Harvey v. Troupe, 23 Miss. 538, the court says: “A promise to pay generally, or a promise to pay a part, or a part payment made, with a full knowledge that he has been released from liability on the bill by the neglect of the holder, will operate as a waiver and bind the party who makes it for the payment of the whole bill.”
Deeming the law to be settled in accordance with the foregoing views, we see nothing objectionable in the instruction. This disposes of the case wholly, and it is unnecessary to examine .or comment on the action of the court in giving and refusing instructions for the defendants.
As the first instruction was erroneous, and it is impossible to tell on which one the jury predicated their verdict, the cause will be reversed and remanded for a new trial in accordance with the views herein expressed.
Reversed and remanded.