Chicago Herald Company v. Bryan
| Decision Date | 10 April 1906 |
| Docket Number | 1 |
| Citation | 92 S.W. 902,195 Mo. 574 |
| Parties | CHICAGO HERALD COMPANY v. WILLIAM S. BRYAN, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferriss Judge.
Reversed.
S. T G. Smith and Thos. S. Meng for appellant.
(1) Where an injury has been sustained under such circumstances that a number of persons are liable therefor, either jointly or severally, the person injured is entitled to but a single satisfaction. If he receives satisfaction from one, it is a bar to recovery against the others, even though it were stipulated to the contrary. Hubbard v. Railroad, 173 Mo. 249; Railroad v. Sullivan, 21 Col. 302; Brown v. Cambridge, 3 Allen 474; Breslin v Peck, 38 Hun 623. (2) It appearing that plaintiff, a non-resident, was a mere nominal party, prosecuting this action for the sole use and benefit of an insolvent corporation, which was indebted to defendant in a greater sum than the amount sued for here, defendant was clearly equitably entitled to offset his claim against the claim of plaintiff. North Chicago R. U. Co. v. St. L. O. & S. Co., 152 U.S. 615; Reppy v. Reppy, 46 Mo. 571; Fulkerson v. Davenport, 70 Mo. 542; Taylor v. Stowell, 4 Metc. (Ky.) 176; Blake v. Langdon, 19 Vt. 493; Gemmell v. Hueber, 71 Mo.App. 297. (3) Where plaintiff is a mere nominal party, defendant is entitled to the benefits of all defenses, offsets and counter-claims which he may have against the real party in interest. Frazier v. Gibson, 7 Mo. 271; Hobbs v. Duff, 23 Cal. 626; Keightley v. Walls, 27 Ind. 386. (4) Plaintiff in this case sues expressly for the conversion of certain money, being the proceeds of the discount of certain notes aggregating $ 10,967.40. The receipt of the notes was admitted as well as the fact that they had been discounted and the proceeds received by defendant. There was neither evidence nor admission as to the amount or rate of discount, or as to the amount of the proceeds of the notes. The word "discount" necessarily implies that somthing less than the face of the notes was received. The judgment is therefore unsupported by the evidence. The burden of proof is on the plaintiff to show the identity, amount and value of the articles converted. Bank v. Johnson, 104 U.S. 276; Bell v. Ober & Sons Co., 96 Ga. 219; Harrow v. Railroad, 43 Minn. 72. (5) The evidence shows that the money for which plaintiff seeks to recover was borrowed by defendant from the bank, upon credit of defendant and N. D. Thompson Publishing Company, as well as upon the credit of plaintiff. Defendant by his endorsement of the notes became liable for the payment of the same, and whatever right plaintiff might have against defendant, the money obtained by the discount was not specifically and in kind the property of plaintiff. As plaintiff's action is based solely on its title to the specific fund, and as it had not paid the notes, at the time of the institution of the suit, it cannot recover in this action.
Selden P. Spencer for respondent.
(1) In answer to appellant's point one, it may be said: (a) That defendant is alone liable to the Chicago Herald Company. (b) That even if the Thompson Publishing Company was equally liable with the defendant, there has been no satisfaction of the debt as yet by either. (c) That the question of what is a satisfaction of a debt is always a question of intent of the parties in the absence of a technical release or judgment. Arnett v. Railroad, 64 Mo.App. 368; Bloss v. Plymale, 3 W.Va. 393; Chicago v. Babcock, 143 Ill. 358; Bell v. Townsend, 43 Iowa 372. (d) The intention of both the Thompson Publishing Company and the Chicago Herald Company is clearly shown, negativing any idea of satisfaction for Mr. Bryan's wrongful conversion. (2) In answer to plaintiff's second point: Plaintiff is not the "nominal party" alone, but is the real party in interest. Plaintiff was the owner of the notes, the proceeds of which defendant converted. Even were such not the case, and were the Thompson Publishing Company the plaintiff in interest, nevertheless, equity would not grant an equitable setoff, inasmuch as such setoff would enable defendant to prefer his debt against an alleged bankrupt concern, over the debts of all the other creditors of such bankrupt company. "Equality is equity." More than this, plaintiff's hands are so soiled as he stretches them out toward the chancellor for relief in his iniquity, that with peculiar force the maxim applies: "He who comes into equity, must come with clean hands." (3) In answer to the fourth point of defendant's brief, the petition alleges the amount of the notes. The answer admits their receipt by defendant, and the discounting of them, and the retention of the money by the defendant. The evidence discloses that they bore interest. The law of the State fixes the amount of the interest and makes the chain complete. R. S. 1899, sec. 3705. "Certum est quod certum reddi potest." (4) In answer to plaintiff's fifth point, it need but be said that defendant voluntarily indorsed the notes without solicitation and without the knowledge of either the plaintiff or the N. D. Thompson Publishing Company, and therefore cannot found upon such unsolicited and unexpected indorsement any right whatever against the plaintiff in this case.
This suit was instituted in the circuit court of the city of St. Louis, October 13, 1902, by Chicago Herald Company, an Illinois corporation. The petition alleged that on September 23, 1902, the plaintiff delivered to N. D. Thompson three promissory notes dated October 1, 1902, payable January 2, 1903, aggregating $ 10,967.40, all of said notes being made by plaintiff to the order of N. D. Thompson Publishing Company. That said notes were delivered to Thompson to be discounted by the publishing company and proceeds returned to plaintiff for the purpose of paying certain other notes due October 1, 1902, aggregating $ 10,800. That the publishing company failed to discount the notes and delivered the same to defendant, who represented that he would have the same discounted and return the money to Thompson to be forwarded to the plaintiff. That defendant did have the notes discounted and received the proceeds and wrongfully converted the same to his own use. That plaintiff demanded of defendant the delivery of said money on October 10, 1902. Plaintiff asked judgment for the sum of $ 10,967.40, with interest from October 1, 1902.
The second amended answer upon which the case was tried admits that plaintiff executed the notes to the publishing company as alleged, and that the same were delivered by the publishing company to defendant, and denied all the other allegations in the petition. The answer further stated that the notes were negotiable and payable to the order of the publishing company, and that the publishing company indorsed the same before maturity and delivered the same to defendant, to be indorsed by him and sold, and that he did indorse and sell said notes, and credited the proceeds to an indebtedness of the publishing company to him without notice of any interest of plaintiff therein.
The answer further set up in bar to the action that the publishing company had settled with plaintiff in full for any and all claims which they might have either to said notes or their proceeds.
The answer further states that since the time of said settlement this action has been prosecuted in the name of plaintiff, but solely and entirely by the publishing company, and for the use and benefit of the publishing company. That in 1899 a contract was entered into between the publishing company and defendant for the publication of a book called "Our Island Possessions," under which contract the profits arising from the sales of said publication were to be divided between defendant and said publishing company, in proportion of one-third to defendant and two-thirds to the publishing company. That continually since the date of said contract the publishing company had been engaged in the sale of said publication, and had realized therefrom, after deducting the cost thereof, profits amounting to the sum of $ 150,000, to one-third of which defendant was entitled and which amount was due and owing from the publishing company. That the publishing company was insolvent and that defendant could not realize from it the money so due him by the ordinary process of law. The answer further prayed that an accounting might be had to determine the amount due defendant on account of said profit-sharing contract. The answer further prayed that the indebtedness from the publishing company to defendant on account of said contract should be taken and treated as an offset against the claim for the proceeds of the notes sued for in this case.
The reply to this answer was a general denial.
The case was heard on March 11, 1903, before the court. At the hearing the plaintiff produced as a witness A. A. McCormick secretary and general manager of the Chicago Herald Company, who testified that the Chicago Herald Company had been buying of the publishing company large quantities of the publication known as "Our Island Possessions." That the books were purchased on twelve months' time, the first six months to be without interest and the next six months with interest. That from time to time, as purchases were made, six months' notes were to be given, without interest, and as the maturity of these notes approached plaintiff was to deliver to the publishing company other notes of like amount to be discounted by them and the proceeds returned in time to be applied to the payment of the notes first maturing. That in accordance with this arrangement the plaintiff had given certain notes to the...
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