Gowling v. American Exp. Co.

• Decision Date: 09 November 1903
• Citation: 76 S.W. 712,102 Mo. App. 366
• Parties: GOWLING v. AMERICAN EXP. CO. et al.
• Court: Missouri Court of Appeals

76 S.W. 712

102 Mo. App. 366

GOWLING v. AMERICAN EXP. CO. et al.

Court of Appeals at Kansas City, Missouri.

November 9, 1903.

BANK CHECK—PAYMENT BY DRAFT—EXPRESS COMPANY AS COLLECTOR—LIABILITY.

1. Where one accepts a draft where he might have procured money in payment of a check he has for collection, and the draft is dishonored, he is liable for its value, though the bank issuing and the bank on which the draft is drawn are solvent, and the draft is stopped by telegram of the debtor, a collector having no authority to accept anything but money in payment of a claim.

2. An express company acting as a collector cannot limit its liability as such for accepting a draft instead of money to that of a forwarder, nor to a definite sum, by stipulations in its receipt given for the claim to be collected.

Appeal from Circuit Court, Howard County; John A. Hockaday, Judge.

Action by P. D. Gowling against the American Express Company and another. From a judgment for defendants, plaintiff appeals. Reversed.

T. Shackelford and J. H. Denny, for appellant. R. C. Clark and A. W. Walker, for respondents.

SMITH, P. J.

This case may be stated after this fashion, to wit: On the 1st day of April, 1902, the plaintiff, a resident of Beaumont, Tex., delivered to the defendant Wells, Fargo & Co., at that place, for collection and remittance, a check for $450, drawn by one S. M. Naylor on the Payne & Williams Bank of Fayette, in this state. The defendant, an express company, who advertised and held itself out to the world as a collector of commercial paper, received the check for collection, giving a receipt therefor, and forwarded the same to the American Express Company, defendant at Fayette, with the following indorsement: "Pay to Am. Ex. Co. for collection. A. J. Peterson, G. A. Fargo X. K. C. Mo. Pr. P. P. S." L. W. Jacobs, the agent of the defendant American Express Company at Fayette, presented the check at the Payne & Williams Bank for payment, and it was honored; but, instead of collecting the money on the check, he accepted and received in lieu thereof a draft for $450, drawn by said bank on the Importers' & Traders' National Bank of New York City, payable to himself, which he indorsed: "Pay to the order of P. D. Gowling. L. W. Jacobs, Agent," and sent to the plaintiff by way of express, in care of defendant Wells, Fargo & Co., at Beaumont, Tex. The plaintiff deposited this draft to his credit in the American National Bank at Beaumont, but before the draft was collected by this bank payment was stopped by a telegram sent at the instance of Naylor, the drawer of the check, to the New York bank upon which the draft was drawn, and the Beaumont bank thereupon charged the amount back to the plaintiff, and returned him the draft. The plaintiff, immediately after the draft was returned to him, tendered it to the defendant's agent, L. W. Jacobs, at Fayette, and demanded the sum of $450, and upon refusal of payment began this suit, his petition containing two counts, one praying damages for $450 for alleged violation of contract by defendants in failing to collect and remit the amount of the collection, and the other a count for money had and received by defendants to the use of plaintiff. The amended answer of the defendants contained a general denial, and then sets forth the receipt given by defendant Wells, Fargo & Co. upon receipt of the check for collection which they allege to be the only agreement on the part of the defendants. The answer further set up that the check was obtained by fraud, and in a gambling transaction, to which the plaintiff was a party, and that the plaintiff paid nothing for the check; that the defendants collected said check, and sent the plaintiff a draft therefor, which he accepted as full payment and satisfaction of his check, and that he was thereby debarred and estopped from maintaining this action. The plaintiff filed a reply, denying the new matter set up in the defendants' amended answer, alleging a previous tender of the draft back to the defendants and their refusal to receive it, and deposited the draft with the clerk of the court for the defendants. The cause was tried to a jury, and at the conclusion of the evidence the plaintiff requested and the court refused the following instructions: "(2) The court instructs the jury that if they believe from the evidence that the defendants received of the plaintiff for collection the check mentioned in plaintiff's petition and introduced in evidence, and that defendants presented same for payment to Payne & Williams Bank, and that the same was paid by said bank to L. W. Jacobs, agent of defendants, and that the said Jacobs, instead of receiving and transmitting to plaintiff the money on same, sent instead thereof a draft, which was not paid when payment thereon was demanded by plaintiff, then the verdict must be for the plaintiff for the amount of said check. (3) The court instructs the jury that if they find from the evidence that said Payne & Williams Bank was ready and willing to pay the money on the check of plaintiff at the time it was presented at said bank, and that the money was there to meet same, then it was the duty of defendants to receive only money in return for said check; and that if the defendants, in lieu of the money on said check, sent this plaintiff a draft drawn by said bank, and that said bank afterwards stopped payment on said draft, then the verdict must be for the plaintiff for the amount of said check delivered to defendants. (4) The court instructs the jury that if the defendants received plaintiff's check for collection, and surrendered the same to the Payne & Williams Bank in return for a draft drawn by said Payne & Williams Bank, then the defendants assumed the responsibility of said check proving good and being paid by the bank upon which it was drawn, and, if the same was not paid, but payment thereof refused by the bank upon which it was drawn, then the verdict must be for the plaintiff for the amount of the check." The defendants requested and the court gave the following instruction: "If the jury believe from the evidence that the defendant express companies transmitted the check in question to the Payne & Williams Bank at Fayette, Mo., and collected the same, and transmitted the proceeds to plaintiff without delay by a draft of said bank on the Importers' & Traders' National Bank of New York, and that said banks were solvent at the time, and that the failure to honor said draft was not for want of funds in said Payne & Williams Bank or said Importers' & Traders' National Bank for its payment, but that payment of the same was countermanded without any act on the part of the defendants, or either of them, conducing to the same, then you will find for the defendants."

The principal ground upon which the plaintiff relies for a reversal of the judgment relates to the action of the court in the giving and refusal of instructions. The instruction for defendants, which, in effect, told the jury that if defendants presented the Naylor check to the Payne & Williams Bank, and received a draft therefor on the Importers' & Traders' Bank, and that on the...