69 Mo. 623 (Mo. 1879), Clements v. Yeates

• Citation: 69 Mo. 623
• Opinion Judge: SHERWOOD, C. J.
• Party Name: CLEMENTS v. YEATES et al., Appellants.
• Attorney: John R. Warfield and O. Guitar for appellants. C. M. Napton for respondent.
• Court: Supreme Court of Missouri

Page 623

69 Mo. 623 (Mo. 1879)

CLEMENTS

v.

YEATES et al., Appellants.

Supreme Court of Missouri.

April Term, 1879

Appeal from St. Louis Court of Appeals.

The petition stated that on or about July 1st, 1872, plaintiff sold and delivered to John W. Layne & Co., 94 head of cattle, for which said Layne & Co. executed and delivered to plaintiff the following draft:

" $3,598.40. MALTA BEND, July 2nd, 1872.

Five days after date, pay to the order of Charles Clements $3,598.40, for 94 head of cattle, and charge the same to account of JOHN W. LAYNE & CO. To Messrs. YEATES, MILLER & CO. St. Louis, Missouri." The petition further stated that the cattle so purchased were consigned and delivered by Layne & Co. to defendants, and defendants were duly notified, prior to such delivery, that said cattle had been so consigned and said draft had been so drawn against the same, and that defendants were instructed to accept and pay said draft; that defendants received said cattle and sold and realized upon the same a sum in excess of said draft. Then followed averments of presentment and protest for non-acceptance and non-payment, and that plaintiff was the legal owner and holder of said draft. Defendants answered. At the trial plaintiff gave evidence in support of his petition, at the close of which the circuit court instructed the jury that he could not recover. Thereupon plaintiff took a non-suit with leave, & c. A motion to set aside the non-suit being overruled, an appeal was taken to the court of appeals, where the judgment below was reversed. From the judgment of the court of appeals defendants prosecuted this appeal. John R. Warfield and O. Guitar for appellants. The drawees are not liable. They did not accept the draft. Parsons on Cont., (6 Ed.) 249; Story on Cont., (5 Ed.) 349; Cowperthwaite v. Sheffield, 3 Comst. (N. Y.) 243; N. Y. & Va. Bank v. Gibson, 5 Duer (N. Y.) 574. Nor was there any agreement in writing to accept it, on the faith of which plaintiff took it for value. 1 Wag. Stat., 214, § 31; Story on Bills, (4 Ed.) 276, 249; Chitty on Bills, (8 Ed.) 311, 313; Ontario Bank v. Worthington, 12 Wend. 593; Luff v. Pope, 5 Hill (N. Y.) 413, 417; Goodrich v. Gorden, 15 Johns. 6; Lowery v. Steward, 3 Bosw. 505; Rousch v. Duff, 35 Mo. 312; Valle v. Cerre, 36 Mo. 590; Loonie v. Hogan, 9 N.Y. 435; Johnson v....