82 S.W. 1112 (Mo.App. 1904), Farmers' Bank of Dearborn v. Fudge

Citation:82 S.W. 1112, 109 Mo.App. 186
Opinion Judge:BROADDUS, J.
Party Name:THE FARMERS' BANK OF DEARBORN, Respondent, v. ABOUDAH J. FUDGE, Appellant
Attorney:Hamner, Hamner & Calvin for appellant. Elijah Robinson and Harris Robinson for respondent.
Case Date:November 07, 1904
Court:Court of Appeals of Missouri

Page 1112

82 S.W. 1112 (Mo.App. 1904)

109 Mo.App. 186




Court of Appeals of Missouri, Kansas City

November 7, 1904

Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.

Cause affirmed.

Hamner, Hamner & Calvin for appellant.

(1) Proof upon the trial that respondent was a partnership and not a corporation, is not proof of a material allegation of the petition, but in fact a disproof thereof. R. S. 1899, sec. 572; R. S. 1899, sec. 746. (2) Instruction 1, for plaintiff is erroneous, as it submits that if the bank put money to Franse's credit in the bank, and allowed him the privilege of checking upon it, then the respondent could not recover; and it does not submit the question whether or not he actually did draw it out or any part thereof, and entirely ignores the question of appellant requesting defendant to pay the draft, as alleged in the petition. (3) For the further reason it is not based upon any evidence, and not supported by the evidence, and does not submit the issues of the petition and is misleading and well calculated to mislead average jurymen, and it did not submit whether the draft had been presented and payment thereof refused. (4) For the reason it refers the jury to the pleadings before a recovery could be calculated, such as court informs them they might render. Commission Co. v. Hunter, 91 Mo.App. 333. (5) Instruction 1 is improper as being in direct conflict with instruction 2, given on behalf of the appellant. Stone v. Hunt, 94 Mo. 481.

Elijah Robinson and Harris Robinson for respondent.

(1) When an agent draws a bill on his principal, in the course of the business of the principal, the drawer and the drawee are to be treated as the same person, and, to bind the drawee, acceptance of the bill is not necessary. McCormack v. Hickey, 24 Mo.App. 363; Daniel on Neg. Inst., sec. 128, and cases cited. (3) It is now immaterial whether or not the plaintiff is a corporation. (a) It is alleged in the petition that plaintiff is a corporation, and this allegation is not denied under oath, and is therefore taken as confessed for all the purposes of this action. R. S. 1899, sec. 746; Bowring v. Railway, 90 Mo.App. 329; Faircloth v. Tinsley, 83 Mo.App. 588; Smith Co. v. Rembaugh, 21 Mo.App. 390. (b) By the express provisions of our statute, the defendant, by not raising the question as to defect of parties, waived the same. R. S. 1899, sec. 598; Iron Works v. Holmes, 62 Mo.App. 372; R. S. 1899, sec. 865; Bank v. Hughlett, 84 Mo.App. 274. (3) Plaintiff's instruction 1 is not subject to the objections urged against it by counsel for defendant. (4) Plaintiff's instruction 2 is not subject to the objection urged against it by counsel...

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