Bank of Missouri v. Benoist

• Decision Date: 31 March 1847
• Court: Missouri Supreme Court
• Parties: THE BANK OF MISSOURI v. BENOIST & HACKNEY.

10 Mo. 520

THE BANK OF MISSOURI

v.BENOIST & HACKNEY.

Supreme Court of Missouri.

March Term, 1847.

ERROR TO ST. LOUIS COMMON PLEAS.

POLK, for Plaintiff.GAMBLE & BATES, for Defendants. 1. As to the bill drawn by Anderson on Durst, and sold to the Bank, there was no privity between the Bank and Benoist & Hackney, and so the Bank could have no interest in any contract between Anderson and B. & H. for the protection of the bill in New Orleans. 2. But the contract was never fulfilled on the part of Anderson. He did not furnish the money in St. Louis to take up the bill. He did advance some money, but not enough, and for that he might have maintained an action for money had and received. But in that action B. & H. would have had a good plea of set-off, as the same testimony shows that Anderson owed them $10,000. 3. The action of assumpsit on money counts may be maintained for a transaction and the settlement of an account in currency. 9 Wheat. R. 651; 6 Mass. R. 182; 7 Johns. R. 132; 6 Cowen, 299; 7 Cowen, 662. 4. The instructions are very defectively stated in the transcript. The first instruction on the part of the defendant, and which seems to be refused, we suppose is relied upon. That instruction, in the form in which it now appears, is a trite legal truism, the refusal of which, if it were indeed refused, could not prejudice the defendant, for the other instructions plainly show the ground on which the court put the case.

SCOTT, J.

This was an action of assumpsit on the common counts, brought by Benoist & Hackney against the Bank, for money deposited. Pleas, non-assumpsit, set-off on the general counts, and payment. On the trial the plaintiff obtained a verdict and judgment. Benoist & Hackney deposited in the Bank of Missouri depreciated bank notes, called, in the language of those days, “currency.” There were dealings to a large amount between the defendants in error and the Bank. The accounts were kept in currency, and currency consisted of bank notes which were current, yet from 3 to 5 per cent. less in value than specie. During the time of these dealings J. J. Anderson drew a bill on J. P. Durst in New Orleans for $3,000, and Benoist & Hackney agreed with Anderson to protect this bill. The bill was discounted by the Bank, but it does not appear that she had any knowledge of the existence of the contract between Benoist & Hackney and Anderson at the time the bill was discounted by her. The bill being dishonored it was taken up by the Bank, and she charged the amount of the bill and damages, being $3,300, to Benoist & Hackney, and withheld that amount of their deposits from them. For this sum this suit was brought. The consideration of the promise made by Benoist & Hackney to Anderson was a bill for $3,150, drawn on the St. Louis Perpetual Insurance Company. This bill was dishonored, and afterwards taken in by Anderson, who paid from $800 to $1,200 to Benoist & Hackney, and gave other bills to them for the balance, which does not appear were ever paid. At the time of these transactions Anderson was largely indebted to Benoist & Hackney, and before the promise above mentioned was made by them they had directed their clerk not to credit Anderson without good security.

Before the institution of this suit the Bank had ceased to deal in currency, and had given notice of that fact. There was no evidence of an express demand made by Benoist & Hackney on the Bank before the bringing of the suit. After the plaintiffs' evidence had all been produced, the defendant moved the court to instruct the jury that on the testimony in the cause the plaintiffs were not entitled to recover. This instruction was refused. The defendant then asked the following instructions, viz: 1. The defendant prays the court to instruct the jury that unless they are satisfied from the evidence that, at the time of the institution of this suit, the defendant was indebted to the plaintiffs for one of the causes specified in the declaration, they should find for the defendant. 2. That the evidence of the defendant having on deposit current bank notes belonging to the plaintiffs will not support a declaration for money; unless they should be satisfied that such bank notes were received by the Bank as money, or by the defendant converted into money, either of which it is incumbent on the plaintiffs to prove. 3. If the jury believe from the evidence that John J. Anderson paid the amount of the bill of exchange, negotiated at the Bank by said Anderson, to the plaintiffs, they should find for the defendant. 4. If the jury believe that the money and checks spoken of by Anderson were paid by him to the plaintiffs, for the purpose of settling the bill aforesaid, that the said plaintiffs had no right to appropriate the same to any other purpose; which were refused.

The court thereupon gave the following instructions, viz: 1. That if the jury believe from the evidence that the defendant received money on deposit of the plaintiffs, and refused to pay the same to them, when demanded, they will allow the plaintiffs interest on the same from the time of such demand and refusal to the present time, at the rate of twenty per cent. per annum. 2. There is not before the jury any lawful and competent testimony proving or tending to prove that the two items of $3,000, and one of $300, charged against the plaintiffs in the bank book (which has been given in evidence), are properly chargeable against said plaintiffs. 3. That the jury will find for the defendant, unless they believe from the evidence that the defendant, subsequent to the 27th of May, when the balance was struck in plaintiff's bank book, and prior to the institution of this suit, undertook to pay all sums then on deposit in money. Exceptions were taken to the refusing and giving these instructions.

The first question presented for our consideration is, whether an action for money had and received could be maintained in this case, as the deposits made by the plaintiffs consisted of bank notes of less value than specie. There is no doubt of the general principle that in order to maintain an action for money had and received, it must appear that money has been received for the use of the plaintiff. Thus, it has been held that the action will not lie for stock; but, on the other hand, it has been said it will lie for foreign securities or paper money, if there has been an opportunity of converting them into specie. 1 Leigh's N. P. 46. So when property received by the defendant is really converted into money, and his conduct affords a presumption he has so converted it, it may be recovered in this form of action. Longchamp v. Kenney, Doug. 137. It has been determined that the action will lie on a note payable in foreign bills. Young v. Adams, 6 Mass. 182. Although currency was a little below specie in value, we all know that it was regarded as money, and the resolution of the Bank to cease dealing in currency, afforded ample inference that all such paper as constituted currency had been converted into specie. It was said in the argument that this court, in the case of Farwell v. Kennett, 7 Mo. R. 595, had decided that a bill payable in “currency” was not a bill payable in money, so as to make it a negotiable instrument under our statute. That opinion is adhered to and does not conflict with any thing said herein. The present question does not depend upon the quality of the notes, whether negotiable or not, but whether currency was regarded as money by the parties. A bill of exchange, if...