Union Sav. Ass'n v. Kehlor

• Citation: 7 Mo.App. 158
• Parties: UNION SAVINGS ASSOCIATION, Respondent, v. J. B. KEHLOR, Appellant.
• Decision Date: 29 April 1879
• Court: Court of Appeal of Missouri (US)

7 Mo.App. 158

UNION SAVINGS ASSOCIATION, Respondent,

v.J. B. KEHLOR, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 29, 1879.

1. Where a party, by acts or words, induces another to believe in the existence of a certain state of things and to act upon that belief so as to alter his previous condition, he will be estopped to aver the contrary against the party so altering his previous condition.

2. A sum of money paid voluntarily, under no mistake of fact, can not be recovered back. And the same rules applies where the payment is made in ignorance of facts which the payor has the means of knowing.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

G. M. STEWART, for appellant: A voluntary payment, which one with full knowledge of the facts has made to the other cannot be recovered back. The executed transaction stands.-- Town v. Kress, 55 Ind. 14; Bank v. Franklin, 65 Mo. 104; Awalt v. Eutaw Bank Assn., 34 Md. 435; Williams v. Colby, 44 Vt. 40; Bank v. Reed, 11 Ohio, 498; Patteson v. Cox, 25 Ind. 261; Benson v. Monroe, 7 Cush. 125; Cook v. Boston, 9 Allen, 393; Woodburn v. Stout, 28 Ind. 77; Brisbane v. Davis, 5 Taun. 143; Clark v. Dutcher, 9 Cow. 674; Foster v. Kirby, 31 Mo. 497. When a party knowingly and voluntarily pays money, which he knows can not be recovered, he can have no remedy to recover it back.-- Hope v. Evans, 1 Smed. & M. Ch. 195; Sheldon v. School District, 24 Conn. 88; Cummins v. White, 4 Blackf. 356; Wayman v. Farnsworth, 3 Barb. 369; Abell v. Douglass, 4 Denio, 305; Tyler v. Smith, 18 B. Mon. 793; Railroad Co. v. Frame, 6 Gill, 68; Waite v. Leggett, 8 Cow. 195; Peterborough v. Lancaster, 14 N. H. 382; Bank v. Richardson, 101 Mass. 287; Real Estate Savings Inst. v. Linder, 74 Pa. St. 371; Eaton v. Eaton, 35 N. J. L. 290; Flower v. Laner, 59 N. Y. 603; Wolff v. Marshall, 52 Mo. 167. The plaintiff is estopped from recovering in this action.-- Taylor v. Zepp, 14 Mo. 482; Newman v. Hook, 37 Mo. 207; Chouteau v. Geddin, 39 Mo. 229; The State v. Pepper, 31 Ind. 76.

JOSEPH SHIPPEN, for respondent.

BAKEWELL, J., delivered the opinion of the court.

This is an action to recover money alleged to have been paid by the plaintiff to the defendant under a mistake of fact. There was a trial by the court, and a finding and judgment for the plaintiff; from which the defendant appeals.

It appears that the defendant was a flour-dealer in St. Louis, and in January, 1875, sold to one Sherburn, in Lowell, Massachusetts, one hundred barrels of flour. Sherburn accepted a draft drawn by the defendant at thirty days, dated March 15, 1875, for $671, being the price of the flour, less freight. This draft was handed by the defendant to the plaintiff for collection. The plaintiff was a banking corporation in St. Louis, with whom the defendant kept his account. The defendant, at the same time, held another acceptance of Sherburn, maturing May 21, for $308, being for another shipment of flour in February. The evidence is contradictory as to whether the defendant directed that there should be no protest of the draft at the time he left it for collection. The plaintiff sent the draft to its correspondent in New York, by whom it was forwarded to a bank in Boston, who forwarded it to a bank in Lowell. By some mistake the New York correspondent of the plaintiff advised the plaintiff, by a letter received April 23, that this draft was paid and the proceeds were placed to the credit of the plaintiff in the New York bank. The draft was not paid; and on the same day, April 23, the defendant received a letter from Sherburn, stating that he was obliged to let his acceptance go to protest; that he had one hundred and eighty barrels of the flour on hand, which he would only sell for cash; that he could not take up the draft until he sold the flour; and requesting the defendant to send Frost, the defendant's Eastern agent, to Lowell, and he would pay him part of the draft, and would remit as he sold, or would give him the flour or the money. The testimony is that Sherburn actually had the flour on hand when he wrote the letter. On receiving this letter the defendant, who knew nothing of the advices received by the plaintiff, wrote to Frost to go at once to Lowell and get the flour or the money. On the same day the defendant was told by his book-keeper that the draft was paid, and the proceeds placed to his credit with the plaintiff. He then sent his book-keeper to the plaintiff with Sherburn's letter, which was shown to the plaintiff's cashier, who said that he was not mistaken, the draft was paid, and showed the New York letter. The defendant then sent a dispatch to Frost at Lowell not to take the flour, as the draft was paid. On receiving the dispatch Frost returned to Springfield, Massachusetts, without seeing Sherburn.

On April 26 the plaintiff received a dispatch from its New York correspondent that the draft had been returned unpaid. The plaintiff then cancelled the credit given to the defendant, by charging him with the amount of the draft. On the 29th, the plaintiff received the draft from New York, and then for the first time informed the defendant that the draft was not paid, and sent the draft to him. The defendant refused to receive the draft, and the plaintiff then sent it to its New York correspondent, with directions to protest and collect it. The draft was protested on May 5, and was retained by the Eastern bank until its return to the plaintiff, in 1877.

On May 27, 1875, suit was commenced by the defendant in Lowell against Sherburn. This suit was by attachment, and the record shows that it was upon an account which included the shipments for which the draft in question was accepted. The testimony of the defendant and Frost is that they gave no instructions to include this flour in the suit, and did not know it had been done until the deposition was filed in the present case. Soon after this suit had been commenced (as they supposed, for the flour covered by the second draft), the defendant, at the request of the plaintiff, directed Frost to permit the Eastern bank holding the first draft to join in the suit, provided enough property was attached to cover both claims, but directed him not to do anything to relieve them of their responsibility. This action was pending at the date of the trial in the present case. It appears that Frost went, as requested, to the Boston bank, and advised them of his proceedings, and put them into communication with the defendant's counsel in the suit against Sherburn.

The question as to who should bear the loss was discussed between the plaintiff and the defendant from time to time. The testimony is that the plaintiff's officers at last conceded that the defendant ought not to bear it unless he had made himself liable to do so by his suit in Lowell. In July, 1877, the plaintiff paid to the defendant the amount of the draft. This seems to have been done under the impression that the defendant had sued Sherburn only for goods in consideration of which the second draft was accepted. Afterwards, in November, 1877, this suit was brought.

The instructions given by the plaintiff and those refused to the defendant are numerous and lengthy. It sufficiently appears from these declarations of law, that the trial court held that the notice received by the defendant from Sherburn relieved the plaintiff from any responsibility that it might otherwise have incurred for any loss accruing to the defendant in consequence of abandoning his efforts to secure his claim. The court declared the law to be, that if it appeared from the evidence “that the defendant was notified by the acceptor of the draft that the same was not paid, on the same day that the plaintiff, by mistake, paid the amount of said draft to the defendant, the defendant should have acted on such information received from the acceptor, and was not entitled to rely upon the assurance of payment by the plaintiff, given to him on April 23, 1875; and that the plaintiff is not estopped from correcting...