Brinkman v. Hunter

• Decision Date: 31 October 1880
• Citation: 73 Mo. 172
• Parties: BRINKMAN v. HUNTER, et al., Appellants.
• Court: Missouri Supreme Court

73 Mo. 172

BRINKMAN

v.HUNTER, et al., Appellants.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

F. M. Black for appellants.

1. Plaintiffs should have been compelled to elect upon which count they would proceed to trial. Clements v. Yeates, 69 Mo. 625; Ahern v. Collins, 39 Mo. 145; Ford v. Mattice, 14 How. Pr. 91; Sturges v. Burton, 8 Ohio St. 215; Nash v. McCauley, 9 Abb. Pr. 159; Ferguson v. Gilbert, 16 Ohio St. 88, 91.

2. If the telegram be treated as a promise in writing so as to come within the statute, (R. S. 1879, § 535,) still it cannot be deemed an acceptance of the draft, because the draft was for $680.92, another and different amount from that specified in the telegram. To be such an acceptance the promise to accept must describe the bill in terms not to be mistaken and the bill must correspond therewith. 1 Parsons on Notes and Bills, p. 293. Some authorities hold that if the bills are definitely described in the promise to pay, such promise is to be taken as a virtual acceptance, but if not so definitely described and the bills still be within the authority of the promise, an action may be maintained for breach of promise to accept, while others hold that so long as the bills are within the bounds of the promise, they may be treated as accepted bills. 1 Parsons on Notes and Bills, 296, 297, 298; 1 Dan. on Neg. Inst., §§ 560, 561, and authorities there cited. But in either case the correspondence of the bills with the promise must be proved. In this case the promise was: “Will pay Clark & Goldsby's draft for $608,92.” The draft drawn was for $680.92, and the whole of this demanded, nothing less. No draft for $608.92 has ever been drawn or presented to defendants. How can there be a breach of promise? The promise itself implies that Clark & Goldsby shall make a draft, and this draft is to be for a defined amount. Until these precedent conditions are complied with, there can be no breach of the promise.

3. The telegram was specific and definite, and if the draft had corresponded therewith, would have been deemed an acceptance by force of the statute. It not being an acceptance for want of compliance with the telegram, how can it be held to be a promise to pay another and a different draft? It must be an acceptance, or, as to the draft in question, amount to nothing.

Lathrop & Smith for respondents.

1. The court did not err in refusing to require plaintiffs to elect. Bliss Code Plead., § 120; Cary v. R. R. Co., 60 Mo. 209.

2. The recovery was had upon the second count in the petition which was for damages for breach of promise to accept the bill drawn. 1 Wag. Stat., p. 215, § 5. Authorities upon the point that in order to constitute an acceptance the bill drawn must conform in all particulars to the prior promise are inapplicable. In actions for damages for breach of promise to accept, “the evidence may be of a more general character, and the authority to draw may be collected from circumstances and extended to all bills coming fairly within the scope of the promise.” Edwards on Bills, 413; 1 Parsons on Notes and Bills, 298; Story on Bills, § 462; Boyce v. Edwards, 4 Peters 111, 122; Lonsdale v. Lafayette Bank, 18 Ohio 126; Valle v. Cerre, 36 Mo. 575, 50; (1) The telegram of defendants was a sufficient promise in writing to satisfy the statute. 14 Am. Law Reg. (N. S.) 401; Molson's Bank v. Howard, 40 N. Y. Sup. Ct. (Jones & Spencer) 15. (2) Partial acceptances are valid and binding. Wegerstoffe v. Keene, 1 Strange 214; Edwards on Bills, 419; Byles on Bills, *194. Consequently, an action must lie to recover damages for breach of promise to accept, where the amount of the bill exceeds the amount named in the promise. Damages to the amount of the promise may be recovered. (3) Defendants cannot escape by saying that no bill for $608.92 was ever drawn upon them. The one named in the petition was the only one drawn, and it was drawn and negotiated within a reasonable time after the promise, and corresponded sufficiently with the telegram to show that it was drawn and negotiated upon the faith of it. The mere transposition of the figures from $608.92 to $680.92, ought not to defeat a recovery. Defendants were not injured by such transposition. If they had offered to accept the bill to the extent of $608.92, or to pay that amount upon it, and the plaintiffs had refused to receive it, they might have some reason now in declining to pay. But as they never did make that offer, and as plaintiffs only ask the $608.92 which defendants had promised to pay and which plaintiffs relied upon in negotiating the bill, the judgment ought to be affirmed.

HOUGH, J.

The amended petition upon which the case was tried, contains two counts. The first count states in substance that on the 23rd day of September, 1875, Clark & Goldsby drew their draft on defendants for $680.92 in favor of plaintiffs by the name of Samuel Maher, cashier; that before that time, and on the 20th day of September, defendants, by their unconditional promise in writing, had agreed with plaintiffs to accept and pay the same to the extent and amount of $608.92; that said promises were made by telegraph; that on the faith of said promises, plaintiffs received said draft for a valuable consideration, and are the owners thereof, and that said draft was presented for payment and payment refused, and plaintiffs ask judgment for $608.92 and interest. The second count states that on the 20th day of September, 1875, defendants sent to plaintiffs a telegram as follows: “Kansas City, Missouri, September 20th, 1875. We will pay Clark & Goldsby's draft for $608.92. Hunter, Evans & Co.;” that plaintiffs received the same on that day; that on the 23rd day of September, Clark & Goldsby drew their draft for $680.92 in favor of said cashier, describing it as aforesaid; that plaintiffs, on the faith of said telegram, advanced more than $608.92, and became the owners and holders thereof in good faith; that defendants refused to accept or pay said draft; that by the breach of defendants' said promise they have been damaged in the sum of $608.92, and for which, with interest, they ask judgment. The answer of defendants is a general denial. Defendants, at time of trial, filed their motion to require the plaintiffs to elect upon which count they would proceed, for the reason that there was but one cause of action stated in two counts. This motion the court overruled and defendants excepted.

The cause was submitted on an agreed state of facts and the deposition of plaintiff Maher. The facts as agreed upon are as follows: The plaintiffs were and still are partners, doing a banking business at Great Bend, in the state of Kansas, and Samuel Maher is the cashier of their banking firm. The defendants were live stock commission merchants, doing business at Kansas City, Missouri. Clark & Goldsby, were, at the time of the transaction in controversy, buying and selling cattle, and were also known by the firm name of Clark, Goldsby & Co. Clark & Goldsby, on the 20th day of September, 1875, applied to plaintiffs, at Great Bend, to have their draft on defendants cashed. Plaintiffs said they would cash a draft on a telegram from the defendants. Thereupon, and on that day, Clark & Goldsby sent to defendants a telegram, which is as follows:

TO HUNTER, E. & CO.:

Telegraph to J. V. Brinkman & Co., to advance us proceeds of last shipment. We need it. Give market. Will ship if possible.

CLARK, GOLDSBY & CO.

On the same day and in reply thereto, defendants sent from Kansas City to plaintiffs, at Great Bend, a telegram as follows:

TO J. V. BRINKMAN & CO., Great Bend, Kansas:

We will pay Clark & Goldsby's draft, six hundred eight dollars ninety-two cents.

HUNTER, EVANS & CO.

Plaintiffs did not see Clark & Goldsby again until the 23rd day of said month, when they informed them of the receipt of said last mentioned telegram, and thereupon Clark, Goldsby & Co. drew the draft sued upon and attached to the petition in this cause on the defendants for $680.92, and which plaintiffs discounted and paid Clark, Goldsby & Co. a valuable consideration therefor, and more than $608.92.

On the 23rd day of September, 1875, Clark & Goldsby sent to defendants a telegram from Great Bend, as follows:

TO HUNTER, E. & CO.:

Turn over to Powers, Rial & Co. the amount which you have to our credit.

CLARK & GOLDSBY.

Which telegram was received by the defendants on that day. Indorsed on the same is, “complied with.” Plaintiffs forwarded said draft to the Mastin Bank of Kansas City, Missouri, for collection, and the same was, on the 25th day of September, 1875, presented to defendants for payment, and payment of the amount of the draft was demanded of them, which they refused to pay, and never have paid the same. Before the presentation of the draft to the defendants, to-wit: on September 24th, 1875, they had paid over the amount to the credit of Clark & Goldsby, to-wit: $608.92, to Powers, Rial & Co. On the 29th day of September, 1875, plaintiffs wrote to defendants a letter as follows:

GREAT BEND, KANSAS, September 29th, 1875.

HUNTER, EVANS & CO., Kansas City, Missouri:

Dear Sir--Mastin Bank, of your city, returned to us unpaid a draft drawn by Clark, Goldsby & Co. on you for $680.92. This money was paid to C., G. & Co. by us upon receipt of a telegram from you that their draft upon you was good for that amount. We, therefore, consider you liable to us for that amount, and in case we meet with a loss will endeavor to recover of you. It is sometimes convenient for shippers to get money here on such terms as did C., G. & Co. But if the commission men, after telegraphing that they will pay a fixed amount upon a draft, pay the money out on other accounts, we cannot make such advances.

Very respectfully,

SAMUEL MAHER, Cashier.

Defendants again declined payment of the draft. No draft for $608.92 has been drawn on defendants by said Clark, Goldsby & Co., nor any...