Boyer v. Hamilton

• Citation: 21 Mo.App. 520
• Parties: J. W. BOYER, Plaintiff in Error, v. J. W. HAMILTON ET AL., Defendants in Error.
• Decision Date: 06 April 1886
• Court: Court of Appeal of Missouri (US)

21 Mo.App. 520

J. W. BOYER, Plaintiff in Error,

v.J. W. HAMILTON ET AL., Defendants in Error.

St. Louis Court of Appeals, Missouri.

Apr. 6, 1886.

ERROR to the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Reversed and remanded with directions.

CREWS & BOOTH, for the plaintiff in error: The actual delivery of the account to the plaintiff, coupled with the allegation that the payment was for that and the bill, is an essential element of the assignment. Ford v. Angelrodt, 37 Mo. 50. Anything that shows an intention on the one side to make a present irrevocable transfer of the fund, and from which an assent to receive it may be inferred on the other, will operate in equity as an assignment if supported by a sufficient consideration. Kimball v. Donald, 20 Mo. 577; The Bank of Commerce v. Bogy, 44 Mo. 13. The averment of matters, from which a material fact may reasonably be implied, is a sufficient averment of such material fact. It is sufficient if from it a person of common understanding can know what is intended. Duncan v. Duncan, 19 Mo. 368; Jackson v. Railroad, 80 Mo. 147.

F. M. ESTES, for the defendants in error: The draft, in this instance, not having been accepted by Melton & Claphamson, the plaintiff has no claim to the funds in their hands, as the assignee of Hamilton. Kimball v. Donald, 20 Mo. 577; Bank v. Bogy, 44 Mo. 13; Bank v. Bogy, 9 Mo. App. 335; Dickinson v. Coates, 79 Mo. 168, 250.

ROMBAUER, J., delivered the opinion of the court.

Considerable confusion has arisen in this cause, owing to a misconception by the parties litigant, and by the trial court, of the proper modes of procedure, in actions presenting the features of the present action.

The facts succinctly stated are these: Defendant Hamilton, a merchant dealing in his own name (although, as it would appear, associated with Howard and Kreiter), had the exact amount of $657.42 standing to his credit in the hands of defendants Melton & Claphamson, as the proceeds of certain sales, for which an account had been stated between him and them. He thereupon drew his sight draft on them for said amount, payable to the order of the plaintiff, and delivered it to the plaintiff, together with the account stated, the plaintiff paying him at the time the full amount thereof. Melton & Claphamson refusing to pay the plaintiff the amount of the draft, on presentation, he instituted this action against them, stating in his petition the facts above detailed, and claiming to be assignee of the fund. Melton & Claphamson answered, admitting all the facts stated in the plaintiff's petition [which admission included their indebtedness to the plaintiff, as assignee of Hamilton, for the amount sued for], and stated as their sole reason why they refused to pay said draft, that they had been notified of a claim on the proceeds of said sales, by certain persons, representing themselves as the Kansas City Storage & Commission Company [identical with Howard & Kreiter]. That as said claim came to them prior to the presentation of the draft, they refused to pay it solely for their own protection. That they were willing and ready to pay the said balance to the person entitled thereto, and to that end asked the protection of the court.

The plaintiff, instead of moving for judgment upon this answer, which absolutely set up no defence whatever, stood by until the court permitted Howard & Kreiter, the adverse claimants, to be made defendants upon their own motion, and this without any objection on the plaintiff's part. Thereupon, Howard & Kreiter, against whom the petition contained no charge whatever, filed an answer to the plaintiff's petition, in which they set up the fact that the funds in the hands of Melton & Claphamson, were partnership funds of the firm, composed of Hamilton, the drawer of the draft, and said Howard & Kreiter, and that plaintiff took said draft with full knowledge of that fact. They further stated that upon a full settlement of the partnership accounts it would appear that Hamilton was indebted to them, and that these funds were their individual funds at the date of assignment. This answer prayed no relief whatever, nor is it conceivable how the court, under the then state of the pleadings, and the parties before it, could have granted any relief to these defendants. The plaintiff, however, instead of moving to strike out this answer, as he ought to have done, replied to it, denying the facts therein stated, and the parties went to trial upon these pleadings.

The plaintiff gave evidence tending to establish the facts stated in his petition, although these facts were admitted by the defendants Melton & Claphamson in their answer, they being the only parties against whom the plaintiff's petition claimed any relief.

The defendants Howard & Kreiter gave evidence tending to show a partnership between themselves and Hamilton, which had never been terminated, and which was carried on in the individual name of Hamilton, who drew the draft, and of a notice to the plaintiff prior to his purchase of the draft and account, that they had notified Melton &...