85 Mo. 35 | Mo. | 1884
This cause was here before, and is reported in 73 Mo. 665. The cause was again tried in the •circuit court in conformity with the principles of law announced on the former, hearing. There was a second verdict for the defendants, from which plaintiffs appealed to the court of appeals, where the judgment was reversed, and the defendants bring the cause here by ap.peal. The main facts in the case are substantially the rsame.as when the cause was here before, and they need not be again stated. It is now conceded that one hun•dred of the one hundred and fifty barrels of the high-wines were sold to the defendants, by Sherber, on the morning of the 26th of February, 1876, before the bill of lading was delivered to .the bankers, Skilling, Carter & Ahrenz. The latter received the bill of lading from Blumb long before defendants purchased the remaining ■fifty barrels, so that this is really the only amount now in controversy.
The additional question, not before determined, ■grows out of an instruction given on the second trial, at the instance of the defendants. It is as follows: “If the jury believe from the evidence that the two drafts,, •each for $7,000, drawn by the distilling company on
This instruction, we think, must be understood to assert the proposition that if the bank received the drafts solely for the purpose of collecting them, and without any right to apply the proceeds to the account of the distilling company, then the plaintiff could not recover. It, therefore, becomes essential to determine whether there was any evidence in the cause to justify the giving of this instruction. While it is true the evidence shows that the distilling company made a mortgage to the bankers to secure a debt of some $12,000, and subsequently, on the first of February, 1876, made an absolute deed to them of the distillery property, for the consideration of $18,000, still it shows beyond all dispute that they continued to make large advances to the distilling company from the date of the agreement, in 1874, to the date of these drafts. At this time the company was indebted to the bankers in about $18,000 ; of this, $12,000 had been advanced on the twenty-third of February, 1876, to enable the company to buy revenue stamps to be used in removing these two hundred barrels of high-wines, of which shipment the bankers had been notified, and without this advance the highwines could not have been moved. The whole course of business between the bankers and the distilling company was that the former made advances, took the drafts of the latter,, collected them and applied the proceeds in liquidation of the account. The books of the bankers were offered in evidence, and it is thought they make evidence , in support of the theory hypothecated in the instruction. They show that the amount of these drafts, $14,000, was applied to the credit of the distilling company on the 26th of February, 1876, the day they were delivered to
If anything was charged by way of discount, it makes against the theory of the plaintiff. If a charge was made for collection it is of but little moment, for that is but an every day occurrence, even when advances are 'made on such drafts. It ought not to be forgotten that these drafts were payable to the order of the bankers. These books are, by agreement, presented here on this hearing, and among other things it is claimed they bear evidence of erasures. The books are of a system frequently found used by bankers who conduct a limited business. Some of the figures found in the column which represents the daily balance of the overdrafts, do show some evidence of having been altered, but those which show the daily debits and credits and from which the former are mathematical deductions, bear n© such evidence, so far as we can see. The following testimony appears in the record: “Iwill ask you, Mr. Blumb, what understanding, if any, the Beardstown Distilling Company had with Skilling, Carter & Ahrenz, with reference to the disposition of drafts drawn by the company against shipments. I see on the 25th of February, for instance, as on the 16th of July, you say you drew drafts on Bollman & O’Hara for some three thousand and odd dollars; how did you happen to draw that draft, what was done, and why did you draw it ? ” A. “We sold them fifty barrels of wine.” Q. “Who did you sell it to?” A. “J. A. Marks & Son; but it was shipped to Bollman & O’Hara; it was so ordered.” Q. “Well, who negotiated that sale?” A. “Well, it was done by letter and telegram to the company.” Q. “With whom at Beardstown was the negotiation made, the distilling company, or Skilling, Carter & Ahrenz?”
The deposition of this witness was read by the plaintiffs. He was also examined at length by both sides. We have examined his entire testimony, and made this copious extract because the instruction seems to stand on this testimony alone. Beyond doubt, the bankers did receive the drafts for collection, in a measure, and had a right to charge them back, if not paid, but it does not follow that they had no other interest in them than mere collecting agents. ’ As we view this evidence, it does not show or tend t© show, that these bankers took the drafts for the sole purpose of collecting them and paying the proceeds to the distilling company, without regard to the overdraft or state of the account of the distilling company. Such a conclusion is at war with the general
