76 S.W. 712 (Mo.App. 1903), P. D. Gowling v. American Express Co.

Citation:76 S.W. 712, 102 Mo.App. 366
Opinion Judge:SMITH, P. J.
Party Name:P. D. GOWLING, Appellant, v. AMERICAN EXPRESS COMPANY et al., Respondents
Attorney:T. Shackelford and J. H. Denny for appellant. R. C. Clark and A. W. Walker for respondents.
Case Date:November 09, 1903
Court:Court of Appeals of Missouri
 
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Page 712

76 S.W. 712 (Mo.App. 1903)

102 Mo.App. 366

P. D. GOWLING, Appellant,

v.

AMERICAN EXPRESS COMPANY et al., Respondents

Court of Appeals of Missouri, Kansas City

November 9, 1903

Appeal from Howard Circuit Court.--Hon. J. A. Hockaday, Judge.

Judgment reversed and cause remanded.

T. Shackelford and J. H. Denny for appellant.

(1) The court tried the case upon an erroneous theory of the law, and submitted the case upon an instruction which erroneously declared the law to the jury. Bank v. Trust Co., 149 Ill. 543; Bank v. Bank, 151 Mo. 329; Ward v. Smith, 74 U.S. 447; Bank v. Bank, 7 Bissell 193; 1 Daniel Neg. Inst. (4 Ed.), sec. 335; 2 Daniels Neg. Inst. (4 Ed.), sec. 1625; Bank v. Ainsworth, 123 Pa. St. 212; Bank v. Bank, 11 N.Y. 203; Hall v. Storrs, 7 Wis. 253; Whitney v. Essen, 99 Mass. 308. (2) Defendants advertised and held themselves out to the world as collectors of commercial paper; the plaintiff delivered them the check to collect, and their indorsements on the check as well as their own admissions show that they received the check for collection, and the defendants can not shield themselves from the liability and duty which the law imposes in such circumstances, by issuing to the plaintiff a receipt for the collection with terms and conditions entirely foreign to the matter in hand. Having received the check for collection the defendants became subject to the duties and liabilities which the law imposes in such cases, and they can not limit their liability for negligence in the performance of the duties thus imposed. Ins. Co., v. Railroad, 74 Mo.App. 89; Ketcham v. Express Co., 52 Mo. 390; Conover v. Express Co., 40 Mo.App. 31; Nickey v. Railroad, 35 Mo.App. 86.

R. C. Clark and A. W. Walker for respondents.

(1) Under the allegations in plaintiff's petition, and his own evidence, the instruction given on behalf of defendants was entirely proper. The petition itself shows that plaintiff accepted the bank draft without objection and presented it for payment and the jury correctly found that both banks were solvent, that there were funds to meet the payment of the draft and that neither of the defendants had anything to do with countermanding its payment. In the case of Bank v. Bank, 151 Mo. 320, the facts were entirely different. (2) Even if the defendants as collecting agents had not been warranted in receiving a banker's draft for the check, the plaintiff by accepting said draft without objection, before it was countermanded, and presenting it for payment, ratified the act of his agents and made the draft his own. 2 Daniel on Negotiable Insts. (4 Ed.), sec. 1625; Rathbun v. Citizens' Steamboat Co., 76 N.Y. 376; Trustees of Schools v. McCormack, 41 Ill. 323; Coykendall v. Constable, 99 N.Y. 313. (3) The receipt taken by plaintiff from Wells, Fargo & Company for the check expressly limits the liability of defendants to that of a forwarder, and the plaintiff not only admitted that fact but himself introduced the receipt in evidence and therefore cannot deny its conditions. If the receipt was erroneous plaintiff should have first reformed it. Shea v. Seelig, 89 Mo.App. 146.

OPINION

[102 Mo.App. 368] SMITH, P. J.

This case may be stated after this fashion, to-wit: On the first day of April, 1902, the plaintiff, a resident of Beaumont, Texas, delivered to the defendant, Wells, Fargo & Company, 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 and 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 & Company at Beaumont, Texas. The [102 Mo.App. 369] plaintiff deposited this draft to his credit in the American...

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