Bank of Missouri v. Merchants Bank of Baltimore

• Citation: 10 Mo. 123
• Parties: BANK OF THE STATE OF MISSOURI v. MERCHANTS BANK OF BALTIMORE.
• Decision Date: 31 March 1846
• Court: United States State Supreme Court of Missouri

10 Mo. 123

BANK OF THE STATE OF MISSOURI

v.MERCHANTS BANK OF BALTIMORE.

Supreme Court of Missouri.

March Term, 1846.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

POLK, for Appellant.

1. That the depositions of Danl. Sprigg, Thos. D. Johnston, and John B. Morris, offered in evidence by the defendant in error, ought to have been excluded by the Court of Common Pleas on the motion of plaintiff in error to that effect. The record shows no notice of the taking--no commission--no authentication--and none of the exigencies in which alone, by our statute, the deposition of a witness may be read in evidence. See Code of 1835, p. 221, §§ 2, 3, 4, 5, 6, 15, 16 and 19.

2. That the copy of the charter of the Merchants Bank of Baltimore, and of the act of the Legislature of Maryland in regard to damages on protested bills of exchange, ought also to have been excluded from the jury, because not authenticated according to law. Code of 1835, p. 250, § 283; 1 Story's Laws, 93, and 2 do. 947.

3. The Court of Common Pleas improperly excluded certain portions of the testimony of the witness, Shurlds, which portions are underscored in the bill of exceptions, and thus designated.

4. The court below erred in excluding from the jury the circular letters offered in evidence by the defendant, especially the first one of those letters. It bore date long before the date of the draft given in evidence by the plaintiff. It was written by defendant's acting and authorized cashier, to the authorized and acting cashier of the plaintiff. It related to and fixed the terms of the very dealing out of which this suit originated. It stated the terms upon which defendant would collect for plaintiff, and was meant to condition and limit the dealings and liabilities of the parties. It was relevant and pertinent, and no objection was or could be made for any informality or technicality. If incompetent, therefore, it must have been so only because it contained the terms of a contract which the defendant had no right, by the laws of the land, to make. But I deny, for the reasons already stated on the 3rd point, and for those which will be hereafter stated on the 5th point, that the laws of the land prohibited the contract whose terms are set forth in that letter.

5. I maintain that the court below erred in the instructions it gave to the jury, and that its judgment ought to be reversed for that reason. Session acts of 1837, p. 17, §§ 18, 19, 26, 35; 3 Wend. 94; 12 Johns. R. 231; 7 Cranch, 306. It held substantially, that the defendant's charter prohibited her from dealing in depreciated funds; that the course of dealing given in evidence was violative of her charter, and that, consequently, she became responsible in specie for the whole amount of currency she had collected for plaintiff, and was not authorized to tender in payment of checks drawn on her for the amount of such collections, the same kind of currency or funds she had received in making such collections, although said funds were received by virtue of an express understanding to that effect between the parties.

6. The Court of Common Pleas erred in refusing to give the instructions prayed by defendant's counsel, excepting the 2nd, which submits to the determination of the jury a question, which is at least, in part, if not entirely, a question of law. Code of 1835, p. 98, § 8, title Bills of Exchange; Riggs v. City of St. Louis, 7 Mo. R. 438.

7. The court below ought to have set aside the verdict and granted the defendant a new trial. Not only because of the errors of law already enumerated, but because the jury found against the evidence.

SPALDING & TIFFANY, for Appellee.

1. The objections to the reading of depositions of plaintiff were properly overruled. 3 How. U. S. R. Camden v. Doremus, Suydan & Nixon; 8 Mo. R. 128, Fields v. Hunter.

2. The objection to the reading of the act of Assembly of Maryland, certified from the office of the Court of Appeals, was properly overruled, as being too general, and as having no foundation even if sufficiently specified.

3. The court below did not err in excluding the three circulars of the Bank of the State of Missouri.

4. The instruction given below for plaintiff was right, there having been no special agreement shown as to the kind of funds in which the collection was to be made; and public policy not permitting the bank to give such notice of collecting in depreciated paper, and then discharging itself from liability for specie or its equivalent; and there being no proof whatever that tender was made in the funds actually received on the claims sent by the plaintiff, but may have been made in paper much more depreciated than that received on said claims. 11 Wheat. 258; Chitty on Contracts, as to consideration against public policy, or illegal or immoral, p. 657; 3 Dessans, 132; 11 Johns. R. 23; 16 Serg. & Rawle, 147. Although courts will not aid parties to recover on transactions arising from illegal agreements, yet where illegal transactions have taken place, an agent who has received money on the part of his principal, will not be permitted to shelter himself from payment of it to his principal on ground of illegality of consideration of original transaction. Rev. Code of 1835, p. 95; acts of 1836-7, p. 24, and acts of 1842-3, p. 20.

5. No exception was taken to the exclusion of certain oral testimony.

6. The 1st, 2nd, and 5th instructions of defendant raised the same questions as the plaintiff's instructions. The 3rd instruction of defendant is of no applicability to the case. The 4th is wrong as nobody contends that the recovery is by the laws of Maryland. The 6th instruction about John Smith has nothing to do with the case.

NAPTON, J.

The Merchants Bank of Baltimore brought an action of assumpsit in the Circuit Court of St. Louis, against the Bank of the State of Missouri. The special counts of the declaration averred, in substance, that on the 6th of July, 1839, the Bank of Missouri was indebted to the Bank of Baltimore in the sum of $20,000, for so much money theretofore collected, and being so indebted, on said 6th day of July promised said Merchants Bank to pay her drafts or checks not exceeding such indebtedness; and that on said day and year the said Merchants Bank of Baltimore drew a draft on said Bank of Missouri, at St. Louis, for $14,580, in favor of one Charles Goodwin, to whom the same was delivered; which said draft, on the 19th July, 1839, was presented for payment at the banking house of defendant and protested for non-payment; that by means thereof the said Merchants Bank became liable to pay, to the holder of the draft, said sum of $14,580, together with cost of protest, interest and damages, according to the laws of the State of Maryland; and that by these laws the holder of the draft was entitled to recover of the Merchants Bank damages on the draft at the rate of eight per cent. upon the principal sum thereof; that on the 3rd of August, 1839, the Merchants Bank paid to the holder of the draft $15,735 10, being the amount of principal and damages thereon, interest, &c., of all of which the Bank of Missouri had notice, by means of which, &c., &c.

The pleas were non-assumpsit, set-off, and payment. The case was transferred to the Court of Common Pleas, where it was tried, and the plaintiff had a verdict for $1,604 76, and judgment accordingly. Motions in arrest of judgment, and for a new trial, were made, but overruled.

It appeared in evidence on the trial that the Merchants Bank had drawn a check upon the Bank of Missouri, on the 6th July, 1839, for $14,580, in favor of Chas. Goodwin, which was presented for payment on the 19th July, and protested for non-payment. It appeared also that the Merchants Bank subsequently paid the amount, with interest, costs of protest, &c. It appeared also, that the Bank of Missouri offered to pay the check in depreciated bank paper, but that payment was demanded in specie; and further, that the check was subsequently paid in currency, so that the matter in dispute in this case was merely the difference between the face of the check and the actual specie value of the currency paid out, which was alleged and proved to be about ten per cent. below par, and the damages, &c. The bill of exceptions states that objections were made to the introduction of several depositions, read on behalf of plaintiff, but that these objections were overruled, and the defendant excepted.

It was proved by some of the depositions, to which exceptions of this character were taken, that there was in Baltimore, in July, 1838, a convention of delegates from certain banks, by which the 13th day of August, 1838, was fixed upon as the time for resuming specie payments. This convention was attended by John Smith, the then president of the Bank of Missouri.

Copies of the charter of the Merchants Bank, and of the act of the Legislature of Maryland, fixing the damages recoverable on protested bills of exchange, were also given in evidence by the plaintiff. The authentication of these acts was objected to. The copy is certified by the clerk of the Court of Appeals for the western shore of Maryland, to be a truo one, and to be extracted from ““Liber,” &c., being one of the law records of the State of Maryland, belonging to the office of the Court of Appeals for the western shore of said State. To this certificate is affixed the seal of the court. The chief-judge of the Court of Appeals certifies that the foregoing attestation is in due form and by the proper officer. Then follows the certificate of the Governor, certifying to the character of the chief-judge, under the great seal.

The cashier of defendant testified that the Bank of Missouri, when this check was presented for payment, dealt in currency, that is, notes of Indiana, Illinois, and Kentucky banks; that the checks of the Merchants Bank, upon the defendant, had been heretofore paid in that way; that the understanding was that the defendant should collect the demands or...