70 Mo. 524 | Mo. | 1879
In this case the petition set forth that Eugene Shine, in his lifetime, before 1868, deposited for collection with defendant the note of Isaac Walker for $15,000, secured by deed of trust, maturing in 1870, with interest notes at six per cent, per annum, payable semi-annually; that the bank collected and appropriated to its own use the amount of said note with $450 interest paid in January, 1869; $450 paid in July, 1869; $450 paid in January, 1870, and $450 paid in July, 1870, together with the principal; making a total of $16,800 with interest from July, 1870, when payment was refused.
The answer of defendant admitted the deposit of the notes of Walker, but set up that after they were so deposited, Shine being in Cork, Ireland, executed an instrument in writing, as follows: “ 88 Patrick street, Cork, 13th March, 1868. lion. Jos. O’Neil, President of Central Savings Bank, St. Louis, Mo. Hearing from P. O’Neil and Mr. Boyle, that they could use advantageously some additional cash over and above the amount already had of your bank, and being desirous to promote their interests, and enable them to carry on their business efficiently, I will thank you to submit to your bank that, if they will lend O’Neil & Co. $15,000, I will hold myself responsible for that amount, and will leave with you as collateral security the note and mortgage of Isaac Walker, which is at present in your vault for a like sum, say $15,000. If the Central cannot conveniently make, this advance, I will feel
Defendant also claimed that the liability of Shine to it on account of said guaranty, should be set off against plaintiff’s demand.
Plaintiff in the replication to said answer denied that by the letter of 13th of March, 1868, Shine had promised defendant that if it would lend to O’Neil & Co. $15,000, he, Shine, would hold himself responsible therefor; but that Shine did by said letter propose to defendant that if it would advance to O’Neil & Co. $15,000 of additional cash over and above what the said O’Neil & Co. had already borrowed of defendant, that he, Shine, would be responsible therefor; that defendant did at no time advance to O’Neil & Co,. $15,000 of such additional cash or any other sum, but that O’Neil & Co. had, prior to January, 1868, been a customer of defendant, and had an account in the name of said firm with said defendant which was well known to Eugene Shine; that about 20th of January, 1868, the account of O’Neil & Co. with defendant was closed, and a new account opened with defendant in the name of Peter A. O’Neil alone, to which were transferred all the money, credits and effects which were of O’Neil & Go. and of Peter A. O’Neil, and from and after the opening of said new account the said Francis Doyle could not, and only
On the trial in the circuit court judgment was rendered for defendant, from which plaintiff prosecuted his writ of error to the St. Louis court of appeals, where the judgment was affirmed, from which plaintiff has appealed to this court. It is assigned as principal ground of error that the trial court erred in giving improper and refusing to give proper instructions. Plaintiff asked five instructions all of which were refused except the first, which is as follows : “ 1. The letter of Eugene Shine, dated 13th of March, 1868, was a proposal to guarantee the Central Savings Bank for the advance to O’Neil & Co. of $15,000 of additional cash, over and above what the said O’Neil & Co. had already had of said bank; and if the advance which the bank claims to have made to said O’Neil & Co. upon the said guaranty consists in whole or in part of the renewal of any advance or loan before that time made by said bank to the said O’Neil & Co., or to any member of that firm, the defense of the bank fails, and the plaintiff must have judgment.”
Of the instructions asked by plaintiff and refused by the court we insert only the one which we deem has a material bearing on the question in controversy. It is as follows: “2. If the Central Savings Bank, on the 27th of January, 1868, discounted for O’Neil & Co. a note of that date at sixty days, for $10,000, indorsed by James O’Neil and Peter A. O’Neil, placing the proceeds of the discount to the credit of the account of Peter A. O’Neil, in whose name the account of the said firm of O’Neil & Co. with said bank was then and thereafter kept; if on the 30th of March, 1868, when said note matured, said Peter A. O’Neil presented the letter of Shine, dated 13th of March, 1868, to the bank, and the bank then and there declared that 'it-
It is insisted by counsel that the judgment should be reversed, first, because the money alleged to have been loaned by defendant was not loaned to O’Neil & Co., but to Peter A. O’Neil individually; and second, because defendant did not in fact advance to O’Neil & Co., as additional cash the sum mentioned in Shine’s letter of guaranty.
The evidence tended to show the following state of facts: that from and after the 27th day of January, 1868, the account of O’Neil & Co. with the Central Savings Bank was kept in the name of Peter A. O’Neil; that on the 27th day of January, 1868, O’Neil & Co. made their not.e, payable in sixty days, which was indorsed by P. A. O’Neil and James O’Neil; that said note was on that day discounted by the bank and the proceeds of the discount placed to the credit of Peter A. O’Neil; that on the 30th day of March, 1868, when said note matured, the sum of $2,910.16 stood as credit on the account of O’Neil & Co. as kept in the name of P. A. O’Neil; that the letter of Shine was on that day presented to the bank, which agreed to accept the proposal it contained ; that Peter A. O’Neil said the firm wanted but $10,000 that day, and thereupon made his note to the bank at sixty days for $10,000, which was discounted and the proceeds placed to his credit; that the note of O’Neil & Co., executed on the 27th day of January, 1868, and due on that day, was then surrendered to said O’Neil, he having drawn his check against said account
It is evident that what transpired between P. A. O’Neil and the bank on the 30th day of March, 1868, made but one transaction. The presentation of Shine’s guaranty, its acceptance by defendant, the execution of the note for $10,000, the immediate application of the proceeds of its discount to the payment of the note of the 17th of January, 1868, just matured, and the surrender of said note to O’Neil are so connected, linked and interwoven as to constitute but one chain, and considering all these facts and circumstances together the conclusion is irresistible that what occurred amounted to nothing more than giving up the note of O’Neil & Co., made on the 27th day of January, 1868, secured by the indorsement of James O’Neil, the father of Peter A. O’Neil, and substituting therefor another note at sixty days for the same amount, taking the note of Walker to Shine as collateral security, without, in fact, advancing a single dollar of additional cash to O’Neil & Co. or extending their line of discount with the bank to the extent of a single farthing, which was an express requirement of Shine’s guaranty. If Peter A. O’Neil on the presentation to the bank of Shine’s letter had said : Here is Shine’s letter, he offers to guarantee an advance of $15,000 to O’Neil & Co. of additional cash over and above the amount already had by them of your bank; the firm does not desire any additional cash, but they owe you a note, with James O’Neil as indorser for $10,000 heretofore loaned the firm, which we wish to take up by substituting another note at sixty days for the like amount, which we will secure by the collateral mentioned in Shine’s letter, and will call for the other $5,000 when wanted; and the bank had assented to this arrangment; it is evident that Shine would not have been bound thereby, and that the
The defendant could not close its eyes upon the fact that it was not advancing to O’Neil & Co. $15,000 of additional cash as required by the terms of Shine’s guaranty, but only substituting one security for another. The character of the transaction was forced upon the knowledge and attention of defendant as much so as if O’Neil had used the words in the hypothetical ease heretofore put. What was done on the 30th day of March, 1868, was not according to Shine’s contract, and as Shine’s liability and defendant’s rights are governed alone by the contract of guaranty, we are of the opinion that the second instruction asked by plaintiff and refused by the court, ought to have been given. The trial court, in the first instruction which it gave for plaintiff, recognized the correct principle by which the rights of plaintiff and defendant were to be determined, and we cannot see upon what ground the court refused to give plaintiff the benefit of the principle by applying it to the facts detailed in the second instruction, there being evidence tending to establish each one of the facts therein stated.
The third instruction given for defendant is erroneous in this, that it submits as a test by which Shine’s liability is to be determined, what the bank agreed to do, rather than what it actually did, and also in requiring a finding that the bank made it a condition precedent to the loan that O’Neil should take up with the proceeds of the loan, the note of January 27th, 1868, before a verdict could be found for plaintiff. If the bank was informed by the very nature of the transaction that it was violative of Shine’s intention, or that the purpose of O’Neil was to thwart the
In the case of The Bank v. Shine, 48 Mo. 456, to which we have been cited, the only real point considered by the court was as to whether it was the duty of the bank to notify Shine of its acceptance of this guaranty. Judgment reversed and cause remanded.