*1 TERM, 1924. Bank of Comiiierce. v. Nat. telephone availing service by the being itself of init used for which it had subscribed. by peti- disclosed scheme, as

If the defendants’ the narrow come within does not case, tion in the instant compe- of unfair of the doctrine formula and technical question within that it comes there can be tition, applied as defined doctrine reach broader peti- by decisions. the more recent the courts in purpose pass off the defendants tion discloses that advertising advertising medium as the own medium their simulating plaintiff’s merely by plaintiff, actually tacking by their own medium medium, but By plaintiff. this unfair means that of the fendants, advertising place business flagrant plaintiff. competition A that more competition disclosed unfair is nowhere case of unfair scheme is more than com- fact, In books. appropriation petition; an actual amounts property plaintiff’s own busi- the defendants to-their equity ought purposes. hesitate A court of ness long interpose protection against of this scheme character. adjudged rightly below,

The case Com- judgment recommends that the be affirmed. missioner . foregoing opinion PER CURIAM:—The Sutton, opinion judgment adopted as the of the court. The C., is accordingly affirmed. Allen, court is of the circuit P. Daues, JJ., concur. Becker and Respondent, THE WIENER, NATIONAL MORRIS Corpora BANK IN OF COMMERCE ST. LOUIS, Appellant.* tion, Opinion Appeals.

St. Louis Court of Filed June Rejection PRACTICE: Evidence: Cumulative: APPELLATE Changed Testimony Not Have Result: Not Which Would Reversible against In an a bank for had and Error. action received MISSOURI APPEAL REPORTS Wiener v. Nat. Bank of Commerce. plain- under a contract wherein defendant bank to issue to tiff its check on for four when thousand rubles by plaintiff,, appears every require- performed and it contract, ment exacted of him the terms of the and defendant *2 check, rejection refused to issue the of offered showing existing country fendant the condition between this and respect inability Russia with bank’s to transmit a letter correspondent, advice to its Russian and also as to the custom exist? country exchange and fallowed in the matter of between this foreign countries, merely and which was cumulative and could change result,

not was not reversible error. 2. AND BANKING: Contracts: Contract of Bank BANKS to Issue Foreign Inability Check on Bank: to Forward Letter Advice: Issuing According Bank Not Excused from Check to Contract: Liability. against received, In an a bank for had action and agreed Petrograd where defendant to issue to its check on payments specific sum, when he of a and perform performed and defendant refused to when it conceded Petrograd that the funds were ing bank for the of meet- presented, get fact that it not the check when could a let- correspondent to its Russian ter of advice did excuse it from agreed perform. performing a it had contract Rehearing. Motion for

On Inseparable: -: Construction: Contract -: -: Re- 3. Foreign Money. covery A Not Limited Value contract whereby it to issue to its check on by plaintiff, rubles when for four thousand cannot be parts permitting separated three by the defendant into two or refusing breaching Petrograd, issue its check on plain- as a sale of Russian rubles so the transaction to treat only to recover the be entitled tiff should purchased for him. J., Error, 2994; Appeal 4 2. C. section Banks *Headnote (1926 Anno); J., Banking, 234 3. Banks and Bank- 7 C. section Anno). (1926 J., ing, section 234 7 C. Court of the St. Louis.— from the Circuit City Appeal Judge. Framhlin Miller, Hon.

Affirmed. appellant. Netm for

B’Arcy & 693 TERM, Nat. Bank of Commerce. open explanation (1) A instrument written expressed parol in short when it is of extrinsic evidence fairly susceptible con- incomplete of two or is terms vague, language employed is un- structions, or where the ambiguous. 42, *3 Gusmann v. 1053; 167 W. S. App. 114 290, R. E. 134 Mo. McFarland Co.,

Bernero v. punctua- (3) writing a is deficient 531. S. W. tion and the sense Where punctuation may be is varied may way or the be to ex- other, one evidence introduced meaning. plain N. Hamilton, v. 27 C. 428. Graham parties (4) of the and statements at conversation just previous to the execution of the time or the con- may purpose admissible between them be tract writing. aiding p. 22 of the J., in the construction C. Sharp Sturgeon, App. (5) 66 Mo'. 60; v. 191. note 1180, parties Parol or extrinsic evidence of the intention of the up may ambiguity by to clear reason be received of which definitely expressed. 22 J., such intention is not C. — Hartley App. Mo. 196 73; Werner, —, note v. S. — App., Donnell, —, Mo. W. 1072; Watkins v. 179 S. W. Morey (6) or- 980; Feltz, 650,173 v. 187 Mo. S. 82. In W. correctly intention der to ascertain the of the to properly interpret competent the same,.it contract and is purposes writing inquire into which the parol to this end executed and evidence is admissible. 22 App. Camp- 86; Burch, C. note Philibert v. 4'Mo. 470; App. (7) Hayden, bell v. 181 Mo. W. 363. S. 168 appeal reports. 694 214 Missouri Nat. Bank of Commerce. any meaning Where arises as the true sense doubt and any difficulty ap- themselves, or words as to their plication, surrounding under the the sense circumstances investigated language and be both ascertained evidence instrument, dehors agree reason sense means and common other language speak can of the instrument be made party. parol real mind of the In such evidence a case Buster ex 22 note 46; admissible necessitate. 0. J., Mehornay Brown Co. v. North Furniture Mo. Co., Pump Company App. American Central Ideal v. 707; Carthage, Insurance Co., 408; S. W. Viernow (8) Mo. Where a written instrument contains expressions or words are technical be- nature, ing occupation, art, connected with some science or unintelligible yet susceptible to the common reader aof interpretation by experts, parol definite evidence ad- explaining language mitted used effectuating parties through thus the intention of the language. the medium of their own 22 C. J. 1203, note (9) relating in a While words ordi- nary according transactions of life are construed plain, ordinary popular meaning, yet, their if in. subject-matter particular reference to the of the contract, expressions by usage acquired words and have a mean- plain, ordinary popular different from meaning, those words such a contract must be taken peculiar to have been used in their sense, and that sense might parol be fixed evidence. 17 C. J. 498, note 8; Realty Moynihan, Riley- Sno-Qualmi v.Co. 629; Mo. *4 Seymour, (10) Wilson Grocer Co. v. 129 Mo. explain Evidence of custom admissible to receipt given by of a a for the transmission of funds foreign country. Liberty to a v. Kurtzeborn Bank, (11) usage S. 103. W. The established of a bank is bind- persons dealing they on with it whether have actual knowledge particularly thereof or not, where it has been long pre- so established that its customers well be general sumed have it,of or where it a known cus- among place. tom the banks 17 C. *5 MISSOURI APPEAL REPORTS.

Wiener v. Nat. Bank of Commerce. impossible making resumed, com- it for tbe defendant to any municate with or forward of advice to bank letters pay- plaintiff Russia; in that when ments November from defend- he demanded P'etrograd ant a check on for 4000 but defendant rubles, get the check refused to issue because could not a let- ter of advice to Russia. The offered to deliver to plaintiff accept the 4000 but rubles, refused to same. reply plaintiff purchased any

The denied agreed from but that him defendant to issue to by plaintiff. check for 4000 its rubles when reply There are other denials and admissions unnecessary it is to set out. gave

At the conclusion all the evidence the court peremptory instruction to find for for the together amount of from $920, interest the date of appeals. demand, defendant objection urged by sole The the defendant in this ground although court as reversal, stated differ- ways, permitting ent that the court erred in not existing necessary the custom show transmitting money determine the manner of foreign explain countries, and to of this contract as aswell the intent of the thereto at the time of execution. “ plaintiff paid At the time to defendant the first $450, following receipt: he received from defendant the “No............. “St. Louis, Mo., 7/21 from Received Morris Wiener

2905 Dixon Street part payment on Ro. 4000— $450—for 23 @ Check paid monthly payments

Balance of $470—to of not less than on the $25. 10th of each each month. in St. Louis Bank National oe Commerce E. Oppenheimer.” Per appears It from the that he buying

went defendant bank TERM, 1924. Bank v. Nat. of Commerce. He tbe him same. and defendant to sell rabies, *6 bank, exchange department the defendant of Oppenheimer went to the was who with had a Mr. conversation the charge department. occurred This in of that twenty-first July, the made time he 1917. At that of through Mr. payment, bank, defendant initial and the receipt. made Plaintiff Oppenheimer, above issued the payments he contract, and when in all the as the payments November, he in his by Petrograd con- the called a check on as manded any to check to issue him tract. The defendant refused gave repeatedly as the same, after he had demanded country was not this allowed a reason therefor that any nothing therefore Russia, transact business of the return done for him. He then demanded could be money, which was also refused. objection by plaintiff’s made The court an sustained Oppen- reading deposition of of the counsel to the Mr. existing showing this the conditions between heimer, country inability respect and Russia with to the bank’s correspond- to transfer a letter advice to its Russian of existing as custom in and also the followed ent, country foreign exchange this the matter of between objection The was made and countries. same sustained testimony other offered defend- to the of witnesses appear testimony ant. from the of A. However, does Brueggemann, P. a witness the who Oppenheimer to Mr. the time of trans- assistant at charge and at of in action, the time the trial foreign department bank, of accord- that, banking obligations the custom in circles, by delivering the defendant would be carried out plaintiff Petrograd, Russia, its check a bank payment plaintiff rubles. sum of carry any way, But to out other one entered into between and defendant would have appears It also to be canceled. from his payments time at the concluded his letters no could of advice be sent Russia. He im- testified that MISSOURI APPEAL REPORTS. v. Nat. Bank oí Commerce. mediately payment, first the de- made his after pur- country and went the market in this fendant into exchange plaintiff, or the chased the Russian rubles an bank had therefor. He also' stated that the defendant they Petrograd, account in and that had set aside purchased plaintiff, but amount of rubles so could the bank Petro- issue check because grad until it honor check unless and would refuse to advising had received a letter advice from defendant presented. it to the check when testimony, theory shown defendant, as is not that it had funds in Russia meet this but that it be to- issue account, would useless when it without a would letter ad- *7 owing inability vice, and, communicate with the Russian of advice bank, no letter could be forwarded. by It is not contended defendant that an action for had not be ac- and received could that an maintained, and damages remedy; proper tion for is the therefore it is unnecessary phase to discuss the case. this of fendant insists as that it should here, stated, have been permitted just what to show the contract between the parties by explaining receipt was the terms used the by testimony. by oral The evidence offered rejected by merely court, was cumulative of the testimony Brueggemann, of the witness far so as it materially affected the result case. of this brought by

The conditions about reason of the World many have been the cause War cases of this kind arising any years, in recent and’ the courts have not evolved applied

strict rule can be all cases, because vary many respects. the facts differ in It must be beginning borne in mind in the that is not a this contract Liberty to remit funds was the case in Kurtzeborn v. Bank Mo.—, —, 253 S. W. 103. Nor was there any question raised in the Kurtzeborn case about the admissibility testimony of oral to show the intent and to the contract. The answer of specifically the defendant in the instant case that states agreed “defendant to issue to its check on Pe- TERM, of Commerce. Nat. Bank plaintiff.” by trograd for when for said conclusively the evi- shown It or here, is conceded part con- a this as that was to do defendant dence, admitted further It is do so. it refused to tract, and that every performed conclusively or shown that his contract requirement terms exacted of him rejection circumstances with defendant. these Under error was not defendant offered it ad- been reversed, which this case should be changed De- situation. mitted would have agreed to issue fendant in its answer that it concedes Petrograd he when to- performed, and payments Plaintiff rubles. the 4000 perform that the' it concedes when refused to meet- funds were ing a nothing presented. There the check when was prevent issuing funds check. The defendant from its ready fact it could it, were and the mere correspondent get would of advice to Russian letter performing it had not excuse it from perform. complete very annotation of

A collection and L. relating question found in A. cases note. R., plain- case think under facts of this

We the conceded Therefore, tiff entitled to a verdict. directed judgment recommends that be affirmed. Commissioner opinion- foregoing PER CURIAM:—The Nipper, *8 judgment opinion adopted is of the court. C., accordingly P. court affirmed. Allen, the circuit is concur. Danes, Becker and JJ., POR, REHEARING. ON MOTION July Opinion filed counsel for defendant, Learned NIPPER, C. rehearing, was a sale insist that there their motion plaintiff, re when defendant and that rubles to Russian Petrograd,- should to issue its check fused only deféndant recover be entitled to APPEAL REPORTS, MISSOURI Nat. Bank of Commerce. purchased sepa- for him. This contract cannot he parts. pur- rated into or two three Plaintiff wanted paid by chase from to be defendant, rubles, Petrograd. eoncededly These are the facts in this case. He was to for these installments. He com- plied with so. contract, and defendant refused to do therefore, treated the Plaintiff, contract as rescinded on account of its breach and sued for original opinion, had and received. As stated any way suggest fendant does not in that this is not a proper remedy. carefully gone

haveWe over defendant’s motion for rehearing, but careful consideration we are con- judgment right strained to hold under the facts of this case. Therefore the "Commissioner recom- rehearing mends that the motion for be overruled. foregoing opinion PER CURIAM:—The Nipper, opinion adopted Appellant’s C., is as the of the court. rehearing motion accordingly Allen, overruled. P. J., Becker and Da/ues,JJ.} concur. notes 1174, 22 C. J. obscure or certain, Montague, 201; Interior 63 Mo. v. 43 Amonett 44; Mo. 433, Paint Linseed Co. v. Becker-Moore Co., App. Phillips 421; 22 J. C. v. Mo. 566; Barnes, S. W. meaning (2) of the and 14. Where 1207, notes the words used and is uncertain from power of the court ascertain within by body evidence instrument, reference to the parties contemporaneous im- the acts mediately prior instrument execution of the properly Coff- 57; note 22 C. be considered. Valley 183 Mo. Co., Railroad man Saline App. 308; 163 Mo. Trish,

464, notes TERM, .1924. Nat. Bank Commerce. S.) (U. 15 How. Otterback, 34 and Adams v. 32, 35; 33, Bank, 5 Orancli. v. 14 L. Ed. Yeaton Alexandria 539, 805; Fitzhugh, (U. S.) Bank v. 3 L. Ed. Columbia 33; & Raborg v. 1 Harr. Gr. Bank, & Columbia Harr. Gr. 239; v. 6 Harr. & J. Jefferson Jackson Bank, Union 146; 231; County 87 Tenn. Bank, Sav. Bank Commercial Nat’l Rep. Lloyds Bankverein, 108 L. T. Bank v. Swiss 350; (N. S.) Frumberg respondent. & Bussell brought by plaintiff is an action NIPPER, C.This ag'ainst received. had and $920, defendant, alleges petition that received the defendant The per July there- month on 21,1917, $450, $25 paid. been after until $920 July 21,1917, answer stated that, Defendant in its “plaintiff purchased rubles, on from day payment part he on that which made a $450 price purchase month- in balance day ly payments of on the 10th less-than each $25 agreed issue to month, and defendant each for said 4000 rubles when its for by plaintiff above stated.” alleges shortly answer The further that twenty-first July, put order itself after the position purchased 4000 rubles check, in a issue said plaintiff, account of said still holds plaintiff. pleads dealing answer then the custom exchange promptly and that such custom is to Russia^ purchase the amount of and when draft or check rubles, is- is issued on a Russian bank for the American bank suing the a letter is the Russian bank mailed to check, advice, on which check is called letter of drawn, pay any Russian bank will check so drawn it- cn it unless receives of advice from the letter* that all mail Bank; American service and communication suspended States between United and Russia was discontinued about been and has never December, 1917,